Securing support to meet the social care needs of children and young people, adults living an injury, illness or disability, or adults in later life is often challenging.
Social care law is complex and difficult to understand. Individuals, families, carers and parent carers are frequently left feeling in the dark, struggling to understand what loved their one may be entitled to or how to access services to meet care needs. Many find they are wrongly denied provision contrary to established criteria.
How can our community care solicitors assist with local authority provision/care & support from social services?
At Lester Aldridge, our specialist health and social care solicitors provide advice and support to individuals and/or their representatives to help them access social care services from a local authority, in a way that meets their needs and preferences.
Examples of the types of social care law issues we can assist with include:
- Advising on the availability of services to help meet the social care needs of children and adults.
- Reviewing refusals by local authorities to provide care and support, to determine if and how decisions can be challenged.
- Advising on how different care models can be funded and organised, such as supported living, shared lives schemes or residential care.
- Obtaining agreement to and negotiating packages of social care.
- Reviewing whether a personal budget is sufficient to meet need and challenging inadequate personal budgets.
- Support to secure funded adaptations to ensure a property is safe and suitable to meet needs.
Click on the links on the right to view more information, download or print our freely accessible social care law information sheets.
How can my social case be funded?
For our community care work involving local authority provision/care & support from social services, there are a variety of funding options.
Frequently Asked Questions
Any child or adult with an injury, illness or disability, or in later life, is entitled to an assessment of their education (0-25 years of age), health and social care needs. Needs assessments must result in care provision which is sufficient to meet assessed needs.
What is the starting point when assessing the care and support needs of a child or adult?
In general terms, the starting point when considering the needs of a child or adult with an injury, illness, or disability, or in later life, is to consider eligibility for NHS Continuing Healthcare (Adults) or Continuing Care (Children and Young Persons).
The reason is quite simply that unless NHS Continuing Healthcare (Adults) or Continuing Care (Children and Young Persons) needs have been considered or established, there is a real risk that a need may not be recognised. Find out more about NHS funded care.
It may be possible to obtain care and support from the Local Authority. Eligibility for Local Authority funded care is dependent on meeting the national eligibility criteria and satisfying the applicable means tests. The rules which govern Local Authority funded care differ for children and adults. More information can be found by clicking here (link to factsheet).
Care provided by a Local Authority to an adult is means tested. A financial assessment will be completed to determine eligibility for Local Authority funded support and whether any contribution to the cost of a care package is required.
For support provided to a child or young person, it is at the Local Authority’s discretion as to whether to charge for services provided. It is therefore essential to check your Local Authority’s policy, usually available on their website
No. Care and support provided by the NHS is non-means tested. This means you will not be charged for services provided the NHS. It is free at the point of access.
The NHS is responsible for meeting healthcare needs. A Local Authority is responsible for meeting social care needs and co-ordinating services to ensure education needs are met.
Social care for children is primarily governed by the Children Act 1989, Chronically Sick & Disabled Persons Act 1970, and the Children & Families Act 2014.
The adult social care system was overhauled in April 2015 with the implementation of the Care Act 2014, the leading legislation regulating social care, support and accommodation for adults.
There is no legal definition of a social care need per se, however recent guidance within the revised National Framework for NHS Continuing Healthcare (October 2018) has clarified that in the case of adults, the Care Act 2014 national eligibility criteria can be taken to relate to what a social care need may consist of.
The national eligibility criteria care outcomes include:
- Managing and maintaining nutrition.
- Maintaining personal hygiene.
- Managing toilet needs.
- Being appropriately clothed.
- Being able to make use of the home safely.
- Maintaining a habitable home environment.
- Developing and maintaining family or other personal relationships.
- Accessing and engaging in work, training, education or volunteering.
- Making use of necessary facilities or services in the local community, including public transport and recreational facilities or services.
- Carrying out any caring responsibilities the adult has for a child.
In the context of children and young persons, Section 21(4) Children and Families Act 2014 provides that ‘social care provision’ means the provision made by a Local Authority in the exercise of its social care functions. This includes provision such as short breaks and domiciliary care in the home.
The fundamental principle is that any person (aged 16+) must be assumed to have the capacity to make a decision, unless it is established otherwise. Capacity is date, time and decision specific because it can change as a person’s condition fluctuates.
If there is a concern about whether the person has capacity to make a decision (for example, about whether an adult should receive a package of care at home, or in a residential care home), their capacity must be assessed.
There is a legal test to determine whether a person has or lacks capacity. There are rules about who is entitled to make decisions once capacity has been assessed.
Yes. For children and young people under the age of 16, decisions in relation to education, health and social care are made within the scope of parental responsibility unless it is demonstrated that the child has Gillick competence.
The length of time it takes to resolve a problem really depends on the type of Community Care issue and the approach taken by the public body.
For example, in our experience a request to NHS England to convene an Independent Review Panel to review a Clinical Commissioning Group’s failure to award NHS Continuing Healthcare can typically take between 12 to 24 months.
In circumstances where a claim arising from catastrophic injury exists or potential medical negligence, our specialist injury lawyers work closely with our Community Care experts to provide a holistic approach to claims management meaning that you may be able to receive assistance to secure care and support from statutory services whilst a potential claim is being investigated.
Find out more about personal injury and clinical negligence claims.
There are a number of ways to challenge the decisions of public bodies. These may include:
- By making a complaint. This may be to the relevant public body (such as a Local Authority or Clinical Commissioning Group) or the Ombudsman (for Health or Local Government & Social Care).
- By lodging an appeal in accordance with an established appeals procedure. For example, refusals to award NHS Continuing Healthcare (for Adults) must be challenged through the Local Resolution procedure, and where necessary, by requesting NHS England reviews the decision through an Independent Review Panel.
- By issuing Court proceedings. For example, a health & welfare dispute regarding what course of action is in a person’s best interests, may require an application to the Court of Protection, or a failure by a Local Authority and/or Clinical Commissioning Group to provide education, health and/or social provision suitable to meet need may require an application for Judicial Review to the High Court.
The appropriate way of challenging the decision of a public body is case dependent.
In most cases there is a time limit to challenge the decision of a public body. Sometimes this is referred to as the ‘limitation period’.
The applicable time limit depends on the decision and method used to challenge the decision. For example:
- An unsatisfactory response to a complaint by a Local Authority or NHS Body must be escalated to the Ombudsman (for Health or Local Government & Social Care) within 12 months of the date of the complaint response letter.
- A decision to refuse NHS Continuing Healthcare (for Adults) by a Clinical Commissioning Group (CCG) must be appealed within 6 months of the date of the decision letter. Some CCGs impose additional requirements to challenge, such as a requirement to lodge a ‘Notice of Dissatisfaction’ within 2 weeks of the decision letter. It is therefore essential to check the responsible CCG’s policy carefully.
- A decision which satisfies the grounds and criteria for Judicial Review proceedings must be challenged by issuing Court proceedings at the Administrative Court of the High Court within 3 months of the date of the decision.
The time limit to challenge the decision of a public body is therefore case dependent.
The procedure by which the lawfulness of decisions, policies or actions of a public body can be challenged in Court on the grounds of irrationality or unreasonableness, illegality, procedural unfairness, or on the basis of an alleged breach of human rights.
Judicial Review is not an appeals process and cannot be used to challenge a decision, policy or action that you simply do not agree with. It is a remedy of last resort. In most circumstances Judicial Review can only be considered once all the other ways in which a dispute can be resolved have been exhausted, unless there are urgent or exceptional circumstances.