Disabled Persons (Independent Living) Bill [HL]

House of Commons

Session 2007 - 08
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Other Bills before Parliament

Disabled Persons (Independent Living) Bill [HL]

Disabled Persons (Independent Living) Bill [HL]
Part 2 — Independent living
Chapter 2 — Right to independent living
15

(ii)
the provision of talking therapies, community services for the
alleviation of mental health problems, including crisis services;
(iii)
the provision of occupational therapy;
(iv)
the provision of physiotherapy;
(v)
the provision of speech and language therapy;
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(vi)
the provision of orthotic, prosthetic and wheelchair services;
(vii)
continuing health care;
(viii)
the provision of specialist community palliative care services;

or any other matter which would enable the disabled person to enjoy
independent living, then it shall be the specific duty of those authorities to
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allocate the necessary resources to support the disabled person and otherwise
to make necessary arrangements.
(4)
Without prejudice to the generality of this section, where any disabled person
requires adaptation to his home the responsible authorities shall allocate
resources for, and otherwise make arrangements for, such adaptations
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(whether by means of assistance provided under Part 1 of the Housing Grants,
Construction and Regeneration Act 1996 (c. 53) or otherwise).
(5)
The appropriate authority shall by regulations make provision—
(a)
specifying circumstances in which it will always be necessary for the
responsible authorities to provide practical assistance and support and
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any associated support services of a particular kind to a disabled
person;
(b)
specifying the minimum outcomes the responsible authorities shall
secure for all disabled persons in exercising their duties under this
section and sections 15 and 16.
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(6)
Each disabled person to whom the responsible authorities have decided to
allocate resources under subsection (3) shall be informed of his specific
resource allocation.
(7)
Subject to the provisions of section 15, each disabled person (or, as the case may
be, another qualifying person) has the right to specify whether he wishes to
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receive the resources to be allocated to him under subsection (3)—
(a)
in the form of a payment to him (an “individual budget”);
(b)
in the form of a payment to any prescribed person or organisation for
that person or organisation to manage on his behalf and in accordance
with his wishes (a “delegated budget”);
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(c)
in the form of the provision of services by the local authority, local NHS
bodies or other bodies; or
(d)
as a combination of paragraphs (a) or (b) and (c),

and consequently it is the duty of the responsible authorities to inform disabled
persons of this right and to comply with their decisions.
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(8)
All arrangements to be made under subsection (3) shall be agreed with the
disabled person and written down in an independent living plan.
(9)
Disabled persons have the right to—
(a)
assistance by a nominated supporter or an independent advocate;
(b)
a communication support worker;
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(c)
other forms of information, advice and support,

Disabled Persons (Independent Living) Bill [HL]
Part 2 — Independent living
Chapter 2 — Right to independent living
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in order to make a decision under subsection (7) and to contribute to and agree
to the contents of their independent living plan, and accordingly it shall be the
duty of the responsible authorities to make arrangements for this.
(10)
The disabled person shall be given a copy of their independent living plan in a
format and language which is accessible to them.
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(11)
Disabled persons have the right to a review of their independent living plan at
appropriate intervals or when an urgent need arises and consequently it shall
be the duty of the responsible authorities to make appropriate arrangements
for this.
(12)
In relation to disabled persons with fluctuating conditions such as multiple
10
sclerosis or certain mental health problems, it shall be the duty of the
responsible authorities to put arrangements in place to accommodate and
respond effectively to fluctuating requirements for assistance or services.
(13)
Where the responsible authorities make a decision that it is not necessary to
allocate resources or make arrangements to meet requirements identified
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under this section they shall—
(a)
give the disabled person reasons for the decision;
(b)
make a record of which requirements are not being met and why;
(c)
take all reasonably practicable steps to mitigate any negative impacts of
the determination upon the disabled person’s choice, freedom, dignity,
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control and substantive opportunities; and
(d)
ensure that records of unmet requirements inform the development of
an independent living strategy under section 9.
(14)
Before making any regulations under this section the appropriate authority
shall consult—
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(a)
disabled persons and organisations of disabled persons, including
disabled persons from black and minority ethnic communities and
organisations representing them;
(b)
older people and organisations representing older people;
(c)
carers and organisations representing carers;
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(d)
local authorities;
(e)
NHS bodies; and
(f)
such other persons as may have an interest.
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Individual and delegated budgets
(1)
The right in section 14 to choose to receive support in the form of an individual
35
or delegated budget applies—
(a)
only in relation to matters relating to practical assistance and support
(including, but not limited to, the matters referred to in subsection
(3)(a) of that section) and not to matters referred to in subsection (3)(b)
of that section unless regulations made by the appropriate authority
40
otherwise provide; and
(b)
to the following qualifying persons (“payees”)—
(i)
a person with parental responsibility for a disabled child;
(ii)
a disabled child aged 16 or 17 years;
(iii)
a disabled adult;
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(iv)
the authorised representative of a disabled person.

Disabled Persons (Independent Living) Bill [HL]
Part 2 — Independent living
Chapter 2 — Right to independent living
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(2)
Qualifying persons have the right to assistance and support in managing a
payment and accordingly the responsible bodies shall make arrangements for
such support.
(3)
Where a disabled person is unable to make a decision under section 14(7), even
with advocacy and communication support and assistance, and there is no one
5
who is empowered to act on his behalf, the responsible authorities may, if
satisfied that—
(a)
it would be in the best interests of that person, and
(b)
it is necessary in order to meet the requirements of that person,

make arrangements for a delegated payment for that person.
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(4)
For the avoidance of doubt, disabled persons who decide to receive their
practical support and assistance in the form of a service provided or arranged
for them by the responsible authorities or for whom the responsible authorities
propose to provide or arrange associated support service have the right to
support and services which conform with their choices and aspirations and
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accordingly it shall be the duty of the responsible bodies to take all reasonably
practical steps to meet those choices and aspirations.
(5)
In relation to disabled persons with fluctuating or intermittent conditions such
as multiple sclerosis or certain mental health problems, it shall be the duty of
the responsible authorities to put arrangements in place to accommodate and
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respond effectively to fluctuating requirements for payments.
(6)
The appropriate authority may by regulations make provision—
(a)
as to the conditions falling to be complied with by the payees which
shall or may be imposed by the responsible authorities in relation to
individual budgets (and any conditions which may not be so imposed);
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(b)
as to the circumstances in which the responsible authorities—
(i)
may or shall terminate an individual budget;
(ii)
may require repayment (whether by the payee or otherwise) of
the whole or part of the individual budget.
(7)
The responsible authorities shall appoint an officer for the purposes of—
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(a)
managing the system of individual and delegated budgets;
(b)
co-ordinating funding from relevant partners;
(c)
ensuring relevant staff receive effective training in the use of individual
budgets;
(d)
promoting individual budgets to disabled persons.
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Discharge from hospital
(1)
This section applies where a disabled person is accommodated at—
(a)
an NHS hospital or an independent hospital in pursuance of
arrangements made by an NHS body and is receiving (or has received
or is expecting to receive) care of a prescribed description; and
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(b)
the responsible NHS body considers that it is unlikely to be safe to
discharge the disabled person concerned unless arrangements for
practical assistance and support for independent living and associated
support services are made for him.
(2)
The responsible NHS body shall notify the local authority in whose area the
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disabled person concerned is ordinarily resident (or, if it appears to them that

Disabled Persons (Independent Living) Bill [HL]
Part 2 — Independent living
Chapter 2 — Right to independent living
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the disabled person has no settled residence, to the local authority area in
whose area the hospital is situated) within a prescribed period of time.
(3)
Before notifying the responsible local authority the responsible NHS body
shall consult the disabled person and inform him of his rights under this
section.
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(4)
The responsible NHS body and the responsible local authority shall—
(a)
make arrangements for an assessment of the disabled person’s
requirements under section 13;
(b)
make a decision under section 14 as to the resources and other
arrangements to be made in respect of that person;
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(c)
agree an independent living plan with the disabled person;
(d)
make available the necessary resources and other arrangements;

in order to facilitate his discharge at a time when he agrees with them and
which is calculated to secure his safety and wellbeing.
(5)
The responsible local authority shall also—
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(a)
carry out an assessment of the needs of any person who is a carer in
respect of the disabled person with a view to identifying any services
which—
(i)
the authority may provide under section 2 of the Carers and
Disabled Children Act 2000 (c. 16); and
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(ii)
need to be made available to the carer in order for it to be safe
to discharge the disabled person;
(b)
after consulting the responsible NHS body, decide which of those
services (if any) the authority will make available to the carer.
(6)
The duties in subsection (5) only apply where a carer has asked the responsible
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authority to carry out an assessment under that subsection.
(7)
For the avoidance of doubt a disabled person to whom this section applies has
the right to assistance by—
(a)
a nominated supporter or an independent advocate; or
(b)
a communication support worker (or both),
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in relation to any assessment carried out and any arrangements made under
this section, and accordingly it shall be the duty of the responsible bodies to
make appropriate arrangements.
(8)
A disabled person to whom this section applies is entitled to a review of
arrangements and a further assessment of his requirement within such
35
reasonable period following his discharge from hospital as may be prescribed.
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Authorised representative
(1)
A disabled person is entitled to authorise his nominated supporter or a person
acting as his independent advocate to be his representative in connection with
any arrangements made for him under this Act.
40
(2)
The responsible authorities shall, if requested by the disabled person, permit
the authorised representative of a disabled person—
(a)
to act as the representative of the disabled person in connection with
the making of any arrangements for him under this Act, or

Disabled Persons (Independent Living) Bill [HL]
Part 2 — Independent living
Chapter 2 — Right to independent living
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(b)
to accompany the disabled person to any meeting or interview held by
or on behalf of the responsible authorities in connection with the
provision of any such services for him.
(3)
For the purpose of assisting the authorised representative of a disabled person
to do any of the things mentioned in subsection (2)(a) and (b) the responsible
5
authorities shall, if requested by the disabled person—
(a)
supply to the authorised representative any information, and
(b)
make available for his inspection any documents,

that the disabled person would be entitled to require the responsible
authorities to supply to him or (as the case may be) to make available for his
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inspection.
(4)
Regulations made by the appropriate authority may make provision for the
appointment of a person as the authorised representative of a disabled person
to be made by, or under arrangements made by, the responsible authorities in
a case where the disabled person appears to the responsible authorities to be
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unable to appoint a person as his authorised representative by reason of
significant mental or physical incapacity and such a person will normally be an
independent advocate.
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Disputes between carers and disabled persons
(1)
The responsible bodies shall make arrangements to meet all reasonable
20
requirements for support (including provision of independent advocacy and
communication support) for, and mediation between, a disabled person (on
the one hand) and a carer who provides, or who intends to provide, the
disabled person with a substantial and regular amount of care and support (on
the other) in circumstances where both parties are in dispute over any
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arrangements to be made under sections 13 to 16 of this Act or under section
2(3) of the Carers and Disabled Children Act 2000 (c. 16).
(2)
Arrangements made under subsection (1) shall be made with a view to
resolving any disputes in a way which safeguards the rights of the disabled
person under this Act and the health and wellbeing of the carer concerned.
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(3)
For the purposes of this section “mediation” means a process conducted
confidentially in which a neutral person actively assists the parties in working
towards a negotiated agreement of the conflict.
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Charging of disabled persons
(1)
The appropriate authority shall by regulations make provision specifying
35
circumstances in which a disabled person shall not be liable to make any
payments to the responsible authorities in respect of resources allocated,
arrangements made or services provided under this Act.
(2)
The circumstances referred to in subsection (1) shall include circumstances
where—
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(a)
a disabled person is in receipt of certain prescribed benefits;
(b)
arrangements have been made for a disabled person in relation to the
provision of associated support services referred to in section 14;
(c)
independent living support of whatever kind is being arranged or
provided to a person to whom section 117 of the Mental Health Act
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1983 (c. 20) applies;

Disabled Persons (Independent Living) Bill [HL]
Part 2 — Independent living
Chapter 2 — Right to independent living
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(d)
arrangements have been made under section 14 for a disabled person
in relation to the provision of communication aids and equipment and
other forms of assistive equipment and technology or assistance with
works of minor adaptations to his home;
(e)
adaptations are needed to a home where a disabled child is resident.
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(3)
Regulations made under this section may also specify reasonable
circumstances in which the responsible authorities may otherwise seek
reasonable payments from disabled persons in respect of certain arrangements
made or services provided under this Act (except those excluded by virtue of
regulations under subsection (1)).
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(4)
In determining in what circumstances it is reasonable for the responsible
authorities to require disabled persons to make any payment for arrangements
made or services provided under this Act the appropriate authority shall have
due regard to their duties under section 49A(1) of the Disability Discrimination
Act 1995 (c. 50).
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(5)
Without prejudice to the generality of subsections (1) to (4) regulations made
under this section—
(a)
shall provide that the responsible authorities shall not take into account
any disability benefits received by a disabled person as income in
assessing his ability to pay for a charge for practical support and
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assistance provided to him at his own home or while living in ordinary
housing in the community or for residential accommodation in a care
establishment;
(b)
may provide that any income earned by a disabled person or any
occupational pension (or both) shall not be taken into account in
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assessing his ability to pay a charge for practical support and
assistance.
(6)
For the purposes of this section “disability benefits” means an award of
Attendance Allowance, Disability Living Allowance, Disabled Person’s Tax
Credit or any disability premium paid with Income Support or Pension Credit.
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(7)
Before making any regulations under this section the appropriate authority
shall consult—
(a)
disabled persons and organisations of disabled people, including
disabled persons from black and ethnic minority communities, and
organisations representing them;
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(b)
older people and organisations representing older people;
(c)
carers and organisations representing carers;
(d)
local authorities;
(e)
NHS bodies; and
(f)
such other persons as may have an interest.
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Co-operation between authorities to facilitate independent living plan
(1)
Where the responsible authorities form the view that the implementation of a
disabled person’s independent living plan calls for a funding contribution or
the provision of services by an authority mentioned in subsection (3) the
authorities may request this assistance.
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(2)
An authority mentioned in subsection (3) shall comply with a reasonable
request by the responsible authorities made under subsection (1).

Disabled Persons (Independent Living) Bill [HL]
Part 2 — Independent living
Chapter 2 — Right to independent living
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(3)
The authorities are—
(a)
any other local authority;
(b)
any local education authority;
(c)
any local housing authority;
(d)
any Special Health Authority, Local Health Board, Primary Care Trust,
5
NHS trust or NHS foundation trust in England;
(e)
any local NHS Board or NHS trust in Wales.
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Determination of living arrangements
(1)
In carrying out their functions under section 14 and in making any
arrangements for residential accommodation for a disabled person the
10
responsible authorities shall ensure that no disabled person is placed in a care
establishment or other institutional setting unless each of the following
conditions apply—
(a)
the disabled person wishes to be admitted to such a setting;
(b)
such arrangements best meet the requirements of the disabled person
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(as opposed to being expedient on financial grounds); and
(c)
the proposed placement is not due to absence of accessible or
supported (or both) housing options or alternative independent living
services in the community.
(2)
Where a disabled person wishes to live in a care establishment or other
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institutional setting (and the conditions set out in subsection (1) are satisfied)
he has the right to choose which particular care establishment he wishes to live
in and accordingly it shall be the duty of the responsible authorities to make
arrangements which conform with that choice, subject to such conditions as
may be prescribed.
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(3)
Where a disabled person resident in a care establishment expresses a wish to
move out into an ordinary dwelling in the community (whether during the
course of an assessment under section 13 or otherwise), it shall be the duty of
the responsible bodies to take all practicable steps to make appropriate
arrangements for this.
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(4)
Disabled persons exercising their rights under subsection (3) have the right to
assistance and support including independent advocacy and communication
support and accordingly it shall be the duty of the responsible authorities to
make arrangements for this.
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Amendment of the Children Act 1989
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(1)
The Children Act 1989 (c. 41) is amended as follows.
(2)
In section 31(2) at end insert “; and
(c)
in the case of a child whose parents are disabled persons (within
the meaning of the Disabled Persons (Independent Living) Act
2008), there are no arrangements which could be made under
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sections 13 to 15 of that Act which would result in the child no
longer suffering, or being likely to suffer, significant harm.”.
(3)
In section 44(1) at end insert “; and
(d)
in the case of an application in respect of a child whose parents
are disabled persons (within the meaning of the Disabled
45
Persons (Independent Living) Act 2008), there are no