11 May 1987

Dear Colleague

DISABLED PERSONS (SERVICES, CONSULTATION AND REPRESENTATION) ACT 1986

Summary

1. This circular draws the attention of local authorities to the provisions contained in the Disabled Persons (Services, Consultation and Representation) Act 1986, advises on the commencement of certain sections with effect from 1 June 1987 and others from 1 October 1987, and gives guidance on the effect of the provisions scheduled for such commencement.

Outline Content of the Act

2. The Act includes a variety of provisions designed to improve the effectiveness and co-ordination in the provision of services for disabled people; it gives disabled people a right to appoint a representative to act on their behalf in dealings with local authorities and introduced new procedures for assessing their needs in certain circumstances.

Arrangements for Commencement in Scotland

3. The Secretary of State has, following consultations with the Convention of Scottish Local Authorities, decided to order the commencement of certain sections in Scotland during 1987/88 as follows:

a. From 1 June 1987

Sections 9, 10, 11, 12, 14, 16, 17 and 18.

b. From 1 October 1987

Sections 4 except (b) and 8(1).

4. It is intended to have further discussion with the Convention at an early date on the commencement of section 13 (see Circular No SWSG2/88). The Government has made clear both during the Bill’s passage through Parliament and subsequently that commencement of other sections will require to await the availability of the necessary resources. Guidance on those sections listed above is set out in paragraph 5-20 following.

Duty to Consider Needs of Disabled Person in Connection with Service Provision Under Section 2(1) of the 1970 Act

5. Section 4 clarifies the duty on local authorities to consider, on application, the needs of a disabled person for services provided under section 2(1) of the Chronically Sick and Disabled Persons Act 1970. That sections places a duty on local authorities to make arrangements for providing all or any of a range of matters specified in it (including practical assistance in the home, recreational facilities, holidays, telephones etc) to meet the needs of a disabled person where they are satisfied that his or her particular needs require this.

6. Section 2(1) of the 1970 Act does not state that a local authority has an automatic or immediate duty to determine the needs of a disabled person on request. It was suggested in the course of Parliamentary discussions on the Disabled Persons (Services, Consultation and Representation) Bill that as the duty to ‘make arrangements’ could be interpreted as applying only after the local authority are satisfied that such arrangements are necessary in order to meet particular needs, local authorities might refuse to come to a view as to what are those needs as a means of avoiding the obligation to ‘make arrangements’. The Secretary of State has no reason to believe that local authorities are adopting such practices but as it was clearly never intended that section 2(1) should be interpreted in that way, it was agreed that the matter should be put beyond doubt.

7. Section 4 of the 1986 Act accordingly makes clear that local authorities have a duty to decide whether the needs of a disabled person call for the provision of services under section 2(1) of the 1970 Act, if they are requested to do so by a disabled person (section 4(a)) or by anyone who provides care for him or her (section 4(c)) in the circumstances mentioned in section 8 of the 1986 Act. This provision does not apply to consideration of the need for services or assistance under any other enactment besides the 1970 Act.

Duty of the Local Authority to take into Account the Ability of the Carer

8. Section 8(1) places a duty on local authorities to take account of the carer’s ability to continue providing care to the disabled person. It has effect where a disabled person is living at home and is receiving a substantial amount of care on a regular basis from another person (other than a person employed to provide such care by any body by virtue of its statutory functions). In these circumstances, where it falls to a local authority to decide whether the disabled persons’ needs call for the provision by them of any services under the ‘welfare enactments’ (defined in section 16 of the Act as Part III of the National Assistance Act 1948, section 2(1) of the Chronically Sick and Disabled Persons Act 1970, section 27 of the National Health Service (Scotland) Act 1947, the Social Work (Scotland) Act 1968 and sections 7 and 8 of the Mental Health (Scotland) Act 1984), the authority is required in reaching that decision, to have regard to the ability of the ‘carer’ to continue to provide such care on a regular basis.

9. The section places no specific requirement on the local authority, after taking account of the carer’s ability, to provide services or support for the carer. Authorities will no doubt, however, continue as a matter of normal good practice to have regard to the possible need for such services as are relevant to the disabled person continuing to live at home for as long as possible where this is seen as appropriate and in keeping with his or her wishes.

Information about Services

10. Section 9 extends local authorities’ existing duty under section 1(2)(b) of the Chronically Sick and Disabled Persons Act 1970 to provide information about services to disabled people. That section requires local authorities to ensure that a disabled person who uses any services provided under the Social Work (Scotland) Act 1968 is informed of any other such services as may be considered by the authority to be relevant to his needs. Section 9 of the 1986 Act extends this by requiring authorities to make available information about other services provided by the same authority and about services provided by other organisations which it considers relevant to that person’s needs if the particulars are in the local authority’s possession.

Co-option to Committees etc of Persons Representing the Interest of Disabled Persons

11. Section 10 extends the arrangements for the appointment or co-option to councils, committees or other bodies of a person or persons with special knowledge of the needs of disabled persons as specified in particular enactments. In the local authority field these include section 15 of the Chronically Sick and Disabled Persons Act 1970 which refers to the desirability of appointing to local authority committees dealing with the needs of disabled people who may be disabled or have experience of their special needs. (Similar provisions in relation to consultative committees at national level are contained in section 14 of the Act.) Section 10 provides that appointments or co-options under these and any other relevant provisions shall be made only after consultation with such organisation or organisations of disabled persons as may be appropriate in each case. It will fall to local authorities to determine the appropriate organisations they will wish to consult.

Reports to Parliament

12. Section 11 requires the Secretary of State to make an annual report to Parliament giving information on the development of health and social services in the community for mentally ill and mentally handicapped people; a breakdown of the numbers, by age and length of stay, of patients in National Health Service mental illness and mental handicap hospitals; and such other information as he considers relevant. The timing and full content of such reports (including health information) has yet to be decided. As regards social work, reports will be based initially at least very largely upon statistical information already made available by local authorities on the number of day care and residential places provided (including possibly figures on use of group homes). Local authorities will be asked if any information is required from them beyond that provided at present.

Other Mattes Applying Specifically to Scotland

13. Subsection 12(1) amends section 29(2) of the Chronically Sick and Disabled Persons Act 1970 in its application to Scotland to remove any doubt that persons in Scotland who suffer from mental disorder form part of the range of chronically sick and disabled people in respect of whom local authorities have duties under sections 1 and 2(1) of the 1970 Act.

14. Subsection 12(2) adds to the existing functions of local authorities which stand referred to social work committees under section 2 of the Social Work (Scotland) Act 1968, functions under sections 1 and 2(1) of the Chronically Sick and Disabled Persons Act 1970 (as applied to Scotland by the Act of 1972) and those under the whole of the present Act. (The first addition repairs an omission from the section 2 of the 1968 Act as it has stood since 1972.)

Educational Provisions in relation to Assessments and Recording of Children and Young Persons

15. Section 14 amends sections 4, 61, 62, 63 and 64 of the Education (Scotland) Act 1980 as described in the ensuing paragraphs.

16. Subsection 14(2) changes the title of the child guidance service provided under section 4 of the 1980 Act to "The Regional or Islands Authority Psychological Service". This does not change the duty to provide the service or the functions of the service itself, but simply changes its title to reflect the availability now of psychological services to young persons and others up to the age of 19 as well as to children.

Examination and Assessment of Children and Young Persons

17. Subsection 14(3) amends section 61 of the 1980 Act to ensure that before authorities establish under section 60 of that Act that a child has pronounced, specific or complex special educational needs requiring continuing review, or record a child as having special educational needs, they must first carry out a process of observation and assessment which should include educational, psychological and medical components. The process of assessment may replace a specific medical and psychological examination which was formerly necessary, and it becomes no longer obligatory that there should be a report by a teacher in the education authority’s employment who is, or has been, concerned with a child or young persons education, though it is expected the educational component will normally be based on this. These changes are made in response to what is now seen as best professional practice whereby a child is generally observed over a period in the classroom rather than by single, separate, examinations. In case where a specific medical examination is necessary, the right of the parents to be presented is preserved.

Recording of Children and Young Persons

18. Subsection 14(4) extends the provision in section 62 of the 1980 Act on recording of children and young persons. Section 62 obliges an authority recording a child, or a young persons, as having special educational needs to notify him of the name and address of a person to whom application could be made for help and advice (ie the ‘named person’). Section 14 allows that a parent of a recorded child or a young person himself may notify the authority that he does not wish to have a named person. Some parents have expressed resentment against the statutory involvement of an outsider in their family affairs. The change will allow these persons to opt out. It is expected however that the majority will, as now, welcome the assistance of a named person and because no action will be required of them, will continue to obtain it.

Appeal Against Decision about Recorded Children or Young Persons

19. Subsection 14(5) amends section 63 of the 1980 Act to provide for parents or young persons a further ground of appeal to an appeal committee set up under section 28D of the Act. In future parents, or young persons, will be able to appeal against the decision of an authority not to record a child or young person or where, following a review under section 65A of the Act, they decide to discontinue a Record, and against the terms of a placing request. The additional ability to appeal against a decision not to open a Record is desirable since, by this decision, a child or young person may be denied the very considerable benefits which can flow from the recording of special educational needs.

20. Subsection 14(6) is a technical amendment to section 64 to take account of the changes made to section 63 described above.

Supplemental Provisions

21. Sections 16, 17 and 18 contain respectively the definitions of terms used in the Act; the financial arrangements; and the short title provisions for commencement and the procedure for the making of regulations or orders under the Act.

Action

22. Authorities are asked to bring this circular to the attention of relevant staff in both the social work and education departments who are involved in the provision of services for disabled people and the recording of children with special educational needs. Information is being sent separately to the Secretaries of Health Boards concerning sections 8, 9 and 11 of the Act.

23. Copies of the Act and the relevant Commencement Order - the Disabled Persons (Services, Consultation and Representation) Act 1986 and the Commencement (Scotland) Order no 1 1987 - can be obtained from HMSO, 71 Lothian Road, Edinburgh.

Contact Point

24. Please direct any enquiries about this Circular should be addressed to Miss Mary Forker, Social Work Services Group, Room 44, James Craig Walk, Edinburgh EH1 3BA (telephone 0131 244 5456).

Yours faithfully

GAVIN ANDERSON