02. Your Right to Social and Health Care
This section is divided into two parts.
The NHS and local councils are different organisations, with different rules and governed by different laws.
This section is about help from the local authority (social services, or adult care services), and the NHS.
Social services deal with social care matters, and the NHS deals with health care.
It is sometimes unclear whether help falls into the 'social care' or 'health' category. Often the local authority and the NHS work together by having shared jobs and co-operating by making plans together or pooling their budgets.
The law, and your entitlement to support and care, are different for local authorities and the NHS.
Disabled people have the legal right to have their needs assessed by the their local social services department
Many services come under the heading of 'Community Care' – residential and nursing care in care homes, home helps and personal care in your own home, support to help you become more independent, respite care, holidays, adaptations, day centres, meals on wheels etc.
Do I have the right to ask the council for help?
Anyone can ask the council to help them. The council has a duty to consider someone's needs even if that person hasn't approached them, as long as it appears to the council that the person may have a need for some community care services.
The Council must think about what services you might need as an individual based on your presenting needs that may arise from disability, age, illness or ‘other reasons’. Local authorities are acting unlawfully if they refuse assessments or provision by reference to whether people have a diagnosis or meet a technical definition of being disabled - it should be about an individual's presenting needs. This law is complex, but the main law is the NHS and Community Care Act 1990.
Example 1. Jane has Asperger’s Syndrome and lives in her own flat. She was told that she was not eligible for support from the council because she did not have a learning disability or a mental health problem. Her mother was worried about how she was coping because she is unable to cook or budget for herself and it was having a harmful effect on her health and wellbeing. She sought legal advice and the local authority was told that they must assess Jane for provision based on the actual support she needed rather than her diagnosis or disability.
What should happen with an assessment?
Social services have to carry out an assessment of your needs if you qualify for this.
The level of need which attracts a service is irrelevant when asking for an assessment.
The law says that you should have an assessment within a reasonable time, and that the wait for this should be shorter if your needs are more urgent. If social services believe you have health or housing needs, they must invite the local NHS trust and the housing authority to help in the assessment.
Even if you are unlikely to qualify for any help under the local authority's eligibility rules at the time, you are still entitled to a full assessment, which has to be appropriate to your apparent needs.
You must be consulted about your assessment, and so should any carers. There are directions from the Department of Health about this - the Community Care Assessment Directions.
Example 2. The social worker calls Jeff and tells him that because they are only helping people in 'critical' need at the moment, there's no point in doing an assessment because she knows he won't get any services.
The social worker would be acting unlawfully here because once it is established that Jeff has a possible community care need, he is entitled to a proper assessment of that need.
What if I don't agree with my assessment?
Your assessment has to involve both yourself and your carers, for example this might be your parents if they look after you.
If you believe that what the assessment says is wrong, or if it doesn't describe your needs properly you can take it up directly with social services and use their complaints procedure. Social services have an individual who is responsible for looking at complaints.
You only get practical help from social services if your level of need is high enough to be eligible.
If my assessment says I have care needs, am I entitled to help?
Whether you get help from the council will depend on two things;
(a) What level of risk you would be in if your needs were not met, and
(b) What level of need the council is helping with (the eligibility level).
There are four levels of need: low, moderate, substantial and critical. Each council makes its own policy on what level of need they will actually help with. These days this tends to be as 'substantial' and 'critical' level. Sometimes when a council does not have much money, it will only help people in 'critical' need. This means you have to be at great risk before you get any help.
Help you get from the council can change or be withdrawn if your needs change or if the council's eligibility criteria become more restrictive.
There is government guidance to councils about how they decide whom they should help, and how they should ration their services.
This is called 'Prioritising Need'
Councils have to help people in the most cost-effective way, so the type of service they provide to help meet your needs may not be the same as you would like.
Example 3. Ms Campbell is severely disabled and needs two people to help her get up at night to use the toilet, which she has to do at least twice a night.
This is very expensive for the council, who decide that her needs can she met by telling her to use incontinence pads during the night-time. She is unhappy with this but is not successful in making the council change their minds.
You have a right to a service or a direct payment if your assessment puts you in the eligibility level the council is meeting at the time.
Councils can change the eligibility levels for services if they need to save money. You can only successfully argue against this sort of change if you can show that the council hasn't consulted properly with the right people. For more on this, have a look at this practical guide to how the law can be used to help fight cuts to valued services.
Example 4. Jeff has an assessment which says he is at substantial risk of neglect if he doesn't have support. He is offered five hours of support a week to encourage him to look after himself and his personal hygiene.
Later the council change their eligibility criteria and tell Jeff that they are now only helping people whose risk is at a critical level. Because of this Jeff's service will stop.
Jeff can insist that the council makes an up to date assessment of his needs before stopping his service.
Are community care services free?
Councils will look at your income and your savings to decide how much you should pay them for the care and support you receive.
The council will check whether they feel you are able to pay for or contribute to any community care services they provide.
Although councils are not obliged by law to charge you, in practice they always do.
There are rules from the Department of Health which say how the council should work out what, if anything, you have to pay towards your care and support. These rules are in the Charging for Residential Accommodation Guide (CRAG) and Fairer Charging Policies for Home Care and Other Non-Residential Social Services.
The council have to make sure you are left with a minimum amount each week after they have charged you. This is usually the basic Income Support weekly amount with a quarter of this amount added on. The council has to ask you about the extra costs you have because of your disability and should take this into account.
Example 5. Jeff has been getting 5 hours per week care from social services. He has £25,000 in the bank from money that his mother left him.
Social services assess his ability to pay towards his costs and because of this capital he has to pay it all. However, he has a lot of extra costs because of his disability and should check back with the council once his capital falls below £23,000. At this level of savings, he may qualify for a reduced or nil contribution towards his care costs.
What can I do if I think the council is wrong?
You can pursue complaints against the council by first going through their own complaints process.
You can go on to the Local Government Ombudsman if you are still unsatisfied.
Councils have to act within the law and are accountable for their actions and decisions. The law gives councils a confusing mixture of 'duties' (things that they must do) and 'powers' (things that they can do if they want).
If the council has a duty to help you, e.g. they assessed your need and agreed it is within their eligibility criteria, then they have to help regardless of lack of finances or other problems.
If you feel you have grounds for complaint you, or someone else at your request, can take the following steps,
a) Put in a formal complaint to the council. Complaints should be investigated quickly and efficiently. Councils also have officials called monitoring officers who have to report if the council does things against the law and against what Codes of Practice say they should do, so it is worth contacting them as well.
b) If you are dissatisfied with the response to your complaint and you feel you have suffered injustice because of what the council has done or failed to do, you can contact the Local Government Ombudsman, who has the power to investigate and make recommendations both for further action and compensation.
Taking things further in this way is free of charge.
For details about the council's complaints process and who to contact, check with your local council.
For details about the Local Government Ombudsman, see their website.
Call the Local Government Ombudsman Advice Team on 0300 061 0614.
Example 6. Jeff is re-assessed but his needs are unchanged, so his service will be withdrawn leaving him with no help. He wants to know whether there is any way he can force the council to keep giving him the service he has become used to. His brother John agrees it is silly that they won't help because Jeff will simply end up in crisis and have to go into a home if he can't cope.
He speaks to a local advocacy group who tell him that they did object to the council's new rules. However, the council consulted with a lot of people before changing the rules, and re-assessed everyone getting help from them.
The advocate Jeff talks to says that they spoke to a solicitor, whose opinion was that the council had acted within the law.
NHS Primary care Trusts, acute hospital and other trusts, and GPs constitute the main parts of the NHS.
However, unlike the laws which affect councils, the law which says what the NHS should do is weak and it is very difficult to use it to insist they provide specific medical treatments.
Medical help and attention from the NHS is free of charge. What help is available can be variable from one area to another because the finances and policies of health trust are all different. There are some things, however, which you have a right to wherever you live.
You have a right to register with a GP practice. If you apply to a practice and either they are full or you are not in their catchment area, they do not have to accept you.
If you have problems finding a practice to register with, the local Primary Care Trust (PCT) will find you one.
You have no legal right to see any particular GP in a practice, although you can ask.
You have a right to change the surgery you register with. You do not have to give reasons for this.
If you do not agree with what your doctor says is wrong with you, you can ask them to refer you to someone else for a second opinion. You do not have a right to insist on this, however.
You do not have a right to insist on a home visit from the doctor, as this will depend on their assessment of how urgent your need is.
You have a right to register with a dentist who takes NHS patients (many dentists only take private patients). If you have difficulties finding an NHS dentist, check with your local PCT or through the NHS website.
If you have a primary health need which involves a complex medical condition with substantial and on-going care needs, then you have a right to continuing care from the NHS. The difference between this and social care is that NHS continuing care is free, like other many other NHS services.
It is possible to have a care package that is a mixture of NHS continuing care and social care. The social care part of the package can come with charges.
For more information on this see Carers Direct.
If you have to have planned hospital treatment you have a right to choose a hospital to go to for that service. You can choose any hospital that provides the service you need. You should ask your doctor about this.
You have a right to have hospital treatment within set maximum waiting times. There is no right to a shorter wait as this will depend on medical judgments about how urgent different patients need the treatment.
Problems and complaints
If you have a complaint about your doctor or any medical treatment you receive from the NHS, you can contact the Patient Advice and Liaison Service (PALS) who can give you general advice and negotiate for you about your complaint.
The PALS workers can also help you make formal complaints, which have to go to the Independent Complaints Advocacy Service (ICAS). You can also contact ICAS via NHS Direct or through the Practice Manager at your GP or the NHS Manager if your complaint is against a hospital.
You can also complain to the Parliamentary and Health Service Ombudsman.
Call the Parliamentary and Health Service Ombudsman on 0345 015 4033.