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Mike Griffin
Disclaimer: this is a study guide, not a definitive statement of law. Therapists should seek legal advice it the event of dispute or uncertainty. Do not rely on information given in this document. This document does not relate to law outside England (Scotland and Wales may have their own provisions).
For a summary of moving and handling law, see our separate guide to moving and handling law. This guide is particularly skewed toward the work done by OTs in Social Services, but will have relevance elsewhere. If you work in another field, please send in your own guide to legislation and I will be happy to publish it.
Law consists of several elements: primary legislation (acts of parliament), subsequent case law (decisions made by judges about what the legislation actually means) and governmental guidance and regulations. It is not sufficient to be familiar with only the acts of parliament.
National Assistance Act 1948 (part III) gave Local Authorities the power to provide a range of rather vaguely worded services. Section 29 gives a definition of disability:
persons aged eighteen or over who are blind, deaf or dumb or who suffer from mental disorder of any description and other persons aged eighteen or over who are substantially and permanently handicapped by illness, injury or congenital deformity or such other disabilities as may be prescribed by the Minister. (this wording is as amended by the Local Government Act 1972, Mental Health (Scotland) Act 1960 and Children Act 1989.)
Note the rather outdated language, the exclusion of those under eighteen years of age and the rather absolute categorisation of sensory impairment that leaves a question mark over those who are visually impaired but not blind, for example. The phrase "substantially and permanently" is still of importance today and is found in the criteria of most Social Services departments. The Act does not confer specific rights but empowers Local Authorities to provide certain services. The Act also introduced registers of disabled people.
Section 21(1) empowered local authorities to provide residential accommodation for elderly people or those who were "infirm" or otherwise in need of care that could not be delivered at home. Section 22 allowed the Authority to charge the person for the costs of the accommodation according to their ability to pay.
The Health Services and Public Health Act 1968 (Section 45) empowered Local Authorities to provide services "for promoting the welfare of old people". DHSS Circular 19/71 expanded this to include
The Chronically Sick and Disabled Persons Act (1970, Section 2) gave Local Authorities a duty to assist disabled people (as defined by Section 29 of the National Assistance Act 1948) with:
Thus the Act formed the basis for the provision of a whole range of services including equipment, adaptations, home helps, meals on wheels, etc. As the Act is vague in specifying "assistance", it is not necessarily the case that a local authority must pay for the rental and installation of a telephone, for example.
With regard to adaptations, there is a duty both to assist with adapting existing facilities and, if necessary, to provide additional facilities. Minor adaptations will usually be performed by technicians from the social services department, or through referral to a housing association's technical services. It is not sufficient merely to make the referral, though, as the duty is to "make arrangements". If the housing association or other agency is failing to comply, the Social Services department remains the lead agency and must bring whatever influence it has to bear on the matter. Major adaptations will usually be performed by the housing department (in the case of council tenants) or through the application for a Disabled Facilities Grant as before, assisting with the application is not enough. For more information on Disabled Facilities Grants, see the Housing Construction and Regeneration Act (1996) below.
Section 1 gives Local Authorities a duty to publish information and inform individuals of their entitlement to relevant services.
The Act gives local authorities a duty to make arrangements for the provision of the above services if the authority is satisfied that it is necessary to do so in order to meet the person's needs. However, the authority is permitted to take its resources into account when deciding whether a person has need for its services (Case law: R v Gloucester County Council ex parte Barry, 1997) but...
The National Health Service Act 1977 gave Local Authorities the power to make provision for care of expectant mothers, nursing mothers and children under the age of five not attending primary school. It also gave a duty to provide home help to households where such help is required due to illness, expectant mother, age or disability, and the power to provide laundry facilities to homes qualifying for home help services.
The Health Services and Social Security Adjudication Act 1983 (section 17) is significant for giving Local Authorities the right to charge for domiciliary services provided under section 29 of the National Assistance Act (1948), The Health Services and Public Health Act 1968 (Section 45), and others including meals on wheels, welfare services for disabled or elderly people.
The Disabled Persons (Services, Consultation and Representation) Act (1986, Section 4) gives Local Authorities a duty to assess (when requested) a disabled person's needs for services under Section 1 of the Chronically Sick and Disabled Persons Act (1970). The duty also applies to children (only the 1948 National Assistance Act is restricted to adults).
The Children Act (1989, section 17) [click here for full text] uses similar wording for those under 18, giving Social Services a general duty "to safeguard and promote the welfare of children within their area who are in need". It also obliges Local Authorities to
NHS and Community Care Act (1990) Section 47 [click here for full text] gives Local Authorities the duty to perform an assessment if it appears that a person has need of such services. It (and subsequent guidance and regulations) forms the backbone of most social services legislation today and introduced the concept of needs-led assessments and written care plans. All that is required to establish a duty to assess is the appearance of need. A request is not necessary, and the duty cannot be discharged by writing the the person to ask for a reply if they want an assessment (Case law: R v Gloucestershire County Council ex parte RADAR, 1996).
The Act obliges local authorities to assess for community care services, which are defined in section 46 as the services outlined in the following:
Carers (Recognition and Services) Act 1995 [click here for full text] states that if a local authority carry out an assessment under section 47(1)(a) of the National Health Service and Community Care Act 1990 or Part III of the Children Act 1989 or section 2 of the Chronically Sick and Disabled Persons Act 1970 and an individual ("the carer" ) provides or intends to provide a substantial amount of care on a regular basis for the person being assessed, "the carer may request the local authority, before they make their decision as to whether the needs of the [person being assessed] call for the provision of any services, to carry out an assessment of his ability to provide and to continue to provide care for the [person being assessed]; and if he makes such a request, the local authority shall carry out such an assessment and shall take into account the results of that assessment in making that decision." Paid carers or volunteers working for a voluntary organisation are excluded.
The Disability Discrimination Act (1995) [click here for full text] obliges employers and service providers to make reasonable adjustments to facilitate equal treatment for disabled people. As most occupational therapy services in the physical disability field are specifically set up to cater for disabled people, it might be assumed that this Act has little relevance but attention must be paid to the accessibility of buildings and services for disabled clients and to the question of accessibility of the workplace for disabled workers. Furthermore, service providers have a duty to ensure that the information they distribute about their service is available in a form accessible to disabled people. This might, for example, mean audio or braille alternatives to occupational therapy service leaflets and educational information sheets for clients. Social services and health websites should be configured in such a way that blind people using screenreaders can access them. Where a service cannot be made accessible, alternatives should be provided where possible. For example, a tourist attraction up narrow spiral stairs might provide a video or multimedia alternative if the stairs cannot be made accessible.
The Community Care (Direct Payments) Act 1996 [click here for full text] stated that when a Local Authority has assessed and identified a need for services, it may make payments to the disabled person (not to relatives) to purchase their own care. Initially this was only available to those under the age of 65, but the age limit has now been removed. This can include payment for special equipment and meals. The question of direct payments is raised in the National Service Framework for Older People (Department of Health, 2001) though without specific reference to equipment. The framework for direct payments is expanded further with the Health and Social Care Act 2001 and related regulations and guidance.
The Housing Construction and Regeneration Act (1996) [click here for full text] sets out the entitlement to apply for a Disabled Facilities Grant to fund works of adaptation or provision of additional facilities. The grants are administered by the local Housing Authority, though the Social Services Authority must be consulted in determining whether the adaptation is "necessary and appropriate". This is where the Occupational Therapist is involved. The Housing Authority is not obliged to comply with the recommendations of the Social Services Authority (though it is unusual for them not to do so). Applications can be made direct to the Housing Authority or through the Social Services Authority. In addition, the Housing Authority must be satisfied that the works are reasonable and practical. They must consider the age and condition of the building and its fitness for human habitation, but grants can still be approved if the building would remain unfit for habitation after the completion of the works. Further considerations are detailed in DOE Circular 17/96, Annex 1.
Section 23(1) states that a grant should be approved to facilitate, for the disabled person,:
The above are reasons for which a disabled person should qualify for a mandatory grant. Detailed guidance on the above can be found in DOE Circular 17/96, Annex 1.
Section 23(2) states that the Housing Authority may approve a grant for "making the dwelling or building suitable for the accommodation, welfare or employment of the disabled occupant in any other respect". This is known as a discretionary grant. There must be no blanket policy to refuse discretionary grants, and the Authority should have policies to set out the conditions for approval. It is possible for both a mandatory grant and a discretionary grant to be used if the cost of the works is in excess of the maximum amount of a mandatory grant.
Section 100 defines the disabled occupant as someone registrable under Section 29 of the National Assistance Act (1948) or the Children Act (1989), or one who has:
Note that this definition includes sensory impairment that is not absolute.
Section 19 states that the person applying for the disabled facilities grant must have the requisite interest in the property. The application can come from the owner (or landlord) or the tenant. In the case of an owner's application, Section 101 states that they should have the freehold or a leasehold of which at least 5 years remains. It also includes an assured shorthold tenancy with at least 5 years remaining (Case law: R v Tower Hamlets ex parte von Goetz , 1998).
A tenant's application can be made by any form of tenant, including those whose tenancy accompanies their job (a service tenancy) and local authority tenants.
The application should be made on the form set out in the Housing Renewal Grants (Prescribed Form and Particulars) Regulations (1996), so the authority must still accept an application even if it is not on their own form. The form must be accompanied by estimates from two different contractors of the cost of the works and the owners or tenants certification. The Housing Authority is not permitted to consider resource limitations except in the consideration that the works are reasonable and practical (Case law: R v Birmingham City Council ex parte Mohammed, 1998).
Section 30 states that the amount of the Disabled Facilities Grant is subject to a means test, which is detailed in the Housing Renewal Grants (Prescribed Form and Particulars) Regulations (1996), with guidance in DOE Circular 17/96, Annex J2. If the financial resources of the relevant person exceed the "applicable amount", the amount of the DFG is reduced. The relevant person is the disabled occupant for whose benefits the works will be carried out, and his or her spouse or partner. The total income and capital of the person will be considered, with the income taken as the average weekly income for the 52 weeks prior to the application. The first £5000 of capital is disregarded. Every £250 of capital in excess of this £5000 is regarded as equivalent to an income of £1 per week. There are several elements of both income and capital that are disregarded. The "applicable amount" is set out in a series of allowances and premiums reflecting the "relevant person's" weekly needs. If the financial resources are less than or equal to the applicable amount, the grant will reflect the full cost of the works. Otherwise, the amount of the grant is reduced, with the relevant person being expected to pay the difference. The amount paid by the relevant person should be an amount that they could obtain through an affordable loan. The income of the parents of a disabled child was previously subjected to means testing but the abolition of means testing for disabled children came into force on 31 December 2005.
The repairs and maintenance of the works (a stairlift, for example) would normally be the responsibility of the owner or landlord, particularly if the works can be considered as fixtures and fittings. Inclusion in the works of a maintenance contract should be considered.
An interesting case relating to the meaning of 'safe' in qualifying for a disabled facilities grant arose with R (B) v Calderdale Metropolitan Borough Council: CA (Dame Elizabeth Butler-Sloss, President, Lords Justice Clarke and Sedley): 4 February 2004 . The applicant's eldest son had autism and was uncontrollably aggressive toward the younger son, with whom he shared a bedroom, so he applied for a DFG to build an extra bedroom. The local authority refused the application and a judicial review found that there was no mandatory entitlement for a DFG to ensure the safety of other household members rather than the disabled person but on appeal the decision was overturned and it was ruled that the proposed adaptation, to qualify for a grant, had to minimise material risk as far as reasonably practicable and make the dweling "safe for the disabled occupant and other persons residing with him". The fact that there might be other areas of risk not dealt with by the grant was immaterial.
Please note that since this study guide was written, there have been significant changes to the legal context and a shift away from primary legislation to the use of the powers of the secretary of state in producing national service frameworks and other regulatory measures. Even when these measures lack the force of an act of parliament, they still heavily affect the balance of the legal framework by forming the background to any test of reasonableness or of the nature of the duty of care in the courts. The reader is advised to refer to relevant "National Service Frameworks" and other measures such as Fair Access to Care Services and the Single Assessment Process, most of which can be found on the Department of Health Website.
See also a couple of useful articles on the ICES website drafted by Michael Mandelstam on bathing equipment and self assessment. The latter includes some useful considerations on the question of direct payments and disability equipment.
See separate study guide on the Human Rights Act 1998
Further reading:
Dimond, Bridgit C: (1997) Legal Aspects of Occupational Therapy. Oxford, Blackwell Science.
Mandelstam M (2001a) Safe Use of Disability Equipment and Manual Handling: Legal Aspects - Part 1, Disability Equipment. British Journal of Occupational Therapy 64(1):9-16.
Mandelstam M (2001a) Safe Use of Disability Equipment and Manual Handling: Legal Aspects - Part 2, Manual Handling. British Journal of Occupational Therapy 64(2):73-80.
Hignett S (2001) Manual Handling Risk Assessments in Occupational Therapy. British Journal of Occupational Therapy 64(2):81-86.
Please inform us of any errors or omissions you may have noticed. Your help is needed to make this a useful and relevant resource.
Mike Griffin
[Last updated 1st June 2002]
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