Briefing by Luke Clements ~ updated August 2017. For suggested additions please contact firstname.lastname@example.org
The ‘limit to social care provision’ imposed by section 47 of the 2014 Act extends ‘explicitly’ to children and young people (unlike the limit imposed by the preceding 1948 Act). The Court of Appeal held, in the Coughlan judgment that once a person’s nursing needs are above that limit all their health and social care needs fall to be funded by the NHS.
Since the 1948 Act only applied to adults, it was argued in R (T, D & B) v Haringey LBC (2005) that no such limit applied to children and young people – and that social services could continue to provide services for disabled children who were above the Coughlan limit. In the Haringey case the issue was respite care provision for a child whose nursing care needs were above the Coughlan limit. The support required was a night sitting service ‘so that she could have a few nights of unbroken sleep per week or some time by herself a week’ such that the (paid) carer had the responsibility to ‘wake the mother if an emergency arose’. In addition there was a need for the provision of support six hours per week at the child’s nursery school. It was accepted that the child’s care needs could be properly met by someone who was suitably trained and that it did not need to be by a registered nurse.
Mr Justice Ouseley held that the local authority could not provide the respite care: that even though the relevant Act (the Children Act 1989) did contain an explicit ‘limits of social care’ exclusion, such an exclusion existed at law and it applied to people of all ages:
the provisions of the Children Act are not to be regarded in general as reducing or replacing the important public obligations … set out in the … NHS Act. I do not see that the impact there of section 21(8) of the NAA 1948 means that the principles enunciated were peculiar to that Act …. (para 61).
As Ouseley J stated, although a broad interpretation of the s17(1) of the Children Act 1989 duty ‘to safeguard and promote the welfare of children by proving a range and level of services appropriate to’ could cover these needs – ‘such an interpretation would turn the social services authority into a substitute or additional NHS for children’ and that would be ‘an impermissibly wide interpretation, creating obligations on a social services authority which are far too broad in the context of other statutory bodies and provisions covering the needs of children’ (para 68).
The enactment of the 2014 has now removed all doubt on this point as it contains an explicit limit for children and young people – such that once a child or young person is held to be eligible for NHS CC then all their health and social care services needs are the responsibility of the NHS. Social services can however still provide social work ‘support’: it is the provision of services that is not permitted.
Problematically the Haringey judgment appears to have been all but ignored in Wales – not only by LHBs but also by the Government
The Children and Young People’s Continuing Care Guidance 2012 must be one of the most unsatisfactory documents issued by the Welsh Government. I have observed elsewhere that it ‘defies the Trade Descriptions Act: it … could be the operating system for a pinball machine, but ‘guidance’ it most certainly is not.’ Although it has been rendered redundant by section 47 of the 2014 Act its shadow still causes serious problems. Many Welsh local authorities are funding substantial packages for profoundly disabled and ill young people – not infrequently the cost of one such package representing a significant portion of an authority’s entire disabled children’s services budget.
The 2012 guidance (which must comply with the ‘law’ as stated in the Haringey judgment) fails to explain why ‘continuing care’ is of any relevance or importance. In response to the question it asks ‘What is continuing care?’ it states (para 5):
Continuing care is defined as care provided over an extended period of time to a person to meet physical or mental health needs which have arisen as a result of illness (any disorder or disability of the mind and any injury or disability requiring medical or dental treatment or nursing).
What this fails to explain is what the purpose is of the guidance. At law the reason must be that once a child or young person’s health care needs are outside the limits of social care – then (by virtue of the Haringey judgment) – funding responsibility shifts to the NHS. This legal fact is nowhere made clear in the guidance. Not only does the guidance fail to explain what the decision is (at law) that has to be made – the ‘Decision Support Tool’ fails to make clear how it helps make this decision. At best is simply an ‘Information Recording Tool’. There is nothing to explain whether a particular band would / would not suggest eligibility for NHS Continuing Care funding. This can be contrasted with the equivalent English Framework and DST (on which it was modelled) which states (para 35) ‘either three ‘high’ ratings, one ‘severe’ rating or one ‘priority’ rating is likely to indicate continuing care needs’.
Given the inadequacies of the guidance, practitioners will need to look to the Haringey judgment for guidance.
As noted above, although the limits of social care duty applies to people of all ages, local authorities have specific ‘non-service provision’ social work support duties to children and young people (and of course separate educational duties) . Accordingly where eligible for NHS continuing care funding, a young person (and their family) would still be entitled to social services safeguarding and associated social work support such as help with the emotional problems of coping and caring; giving signposting and information support; providing carer support services (ie services delivered solely to the parents / siblings). Additionally, where a child is ‘looked after’ under section 74 of the 2014 Act – although she/he has same rights to NHS Continuing Healthcare funding as any other child., the local authority will be required to provide funding (and supervision) for the basic foster parenting support (and the IRO support) and for the cost of any social care accommodation but the NHS duty to provide services applies as with any other person above the limits of social care.