|
| |
|
(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; |
| 5 |
(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 |
| 10 |
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 |
| 15 |
(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 |
| 20 |
any associated support services of a particular kind to a disabled |
| |
| |
(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. |
| 25 |
(6) | Each disabled person to whom the responsible authorities have decided to |
| |
allocate resources under subsection (3) shall be informed of his specific |
| |
| |
(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 |
| 30 |
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”); |
| 35 |
(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. |
| 40 |
(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; |
| 45 |
(c) | other forms of information, advice and support, |
| |
|
| |
|
| |
|
| 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. |
| 5 |
(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 |
| |
| |
(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 |
| 15 |
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, |
| 20 |
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 |
| |
| 25 |
(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; |
| 30 |
| |
| |
(f) | such other persons as may have an interest. |
| |
15 | 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 |
| |
(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; |
| |
| 45 |
(iv) | the authorised representative of a disabled person. |
| |
|
| |
|
| |
|
(2) | Qualifying persons have the right to assistance and support in managing a |
| |
payment and accordingly the responsible bodies shall make arrangements for |
| |
| |
(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 |
| |
| |
(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. |
| 10 |
(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 |
| 15 |
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 |
| 20 |
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); |
| 25 |
(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— |
| 30 |
(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 |
| |
| |
(d) | promoting individual budgets to disabled persons. |
| 35 |
16 | 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 |
| 40 |
(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 |
| 45 |
disabled person concerned is ordinarily resident (or, if it appears to them that |
| |
|
| |
|
| |
|
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 |
| |
| 5 |
(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; |
| 10 |
(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— |
| 15 |
(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 |
| |
| |
(i) | the authority may provide under section 2 of the Carers and |
| |
Disabled Children Act 2000 (c. 16); and |
| 20 |
(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 |
| 25 |
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), |
| 30 |
| 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. |
| |
17 | 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 |
| |
|
| |
|
| |
|
(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 |
| 10 |
| |
(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 |
| 15 |
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 |
| |
| |
18 | 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 |
| 25 |
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. |
| 30 |
(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. |
| |
19 | 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 |
| |
| 40 |
(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 |
| 45 |
| |
|
| |
|
| |
|
(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. |
| 5 |
(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)). |
| 10 |
(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 |
| |
| 15 |
(5) | Without prejudice to the generality of subsections (1) to (4) regulations made |
| |
| |
(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 |
| 20 |
assistance provided to him at his own home or while living in ordinary |
| |
housing in the community or for residential accommodation in a care |
| |
| |
(b) | may provide that any income earned by a disabled person or any |
| |
occupational pension (or both) shall not be taken into account in |
| 25 |
assessing his ability to pay a charge for practical support and |
| |
| |
(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. |
| 30 |
(7) | Before making any regulations under this section the appropriate authority |
| |
| |
(a) | disabled persons and organisations of disabled people, including |
| |
disabled persons from black and ethnic minority communities, and |
| |
organisations representing them; |
| 35 |
(b) | older people and organisations representing older people; |
| |
(c) | carers and organisations representing carers; |
| |
| |
| |
(f) | such other persons as may have an interest. |
| 40 |
20 | 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. |
| 45 |
(2) | An authority mentioned in subsection (3) shall comply with a reasonable |
| |
request by the responsible authorities made under subsection (1). |
| |
|
| |
|
| |
|
| |
(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. |
| |
21 | 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 |
| |
| |
(a) | the disabled person wishes to be admitted to such a setting; |
| |
(b) | such arrangements best meet the requirements of the disabled person |
| 15 |
(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 |
| 20 |
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 |
| |
| 25 |
(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 |
| |
| 30 |
(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. |
| |
22 | Amendment of the Children Act 1989 |
| 35 |
(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 |
| 40 |
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 |
| |
|
| |
|