Disabled Persons (Independent Living) Bill [HL]

House of Commons

Session 2008 - 09
Internet Publications
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

(xiv)
the provision of assistance with works for adaptation in the
home and assistance in maintaining adaptations;
(xv)
the provision of suitable residential accommodation;
(xvi)
support relating to housing provision;
(xvii)
the provision of holidays and short-term breaks;
5
(xviii)
the provision of, or assistance in obtaining, consumer
communications apparatus and services such as a mobile or
fixed-line telephone, a computer, a digital television receiver, a
digital radio receiver, a broadband service or digital television
service and any assistive equipment required in connection
10
with this;
(b)
associated support services including, but not limited to—
(i)
the provision of mobility training, communication skills
training, low vision training and equipment;
(ii)
the provision of talking therapies, community services for the
15
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;
(vi)
the provision of orthotic, prosthetic and wheelchair services;
20
(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
allocate the necessary resources to support the disabled person and otherwise
25
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
(whether by means of assistance provided under Part 1 of the Housing Grants,
30
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
any associated support services of a particular kind to a disabled
35
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.
(6)
Without prejudice to the generality of subsection (5), minimum outcomes
40
prescribed under that subsection shall include—
(a)
ensuring freedom from physical risk, inhuman or degrading treatment,
abuse and exploitation;
(b)
ensuring dignity within, and control over, a person’s personal living
environment;
45
(c)
the full enjoyment of the right to personal development and to establish
and maintain family and other social relationships;
(d)
support for participation in the life of the community;
(e)
support to participate in essential social and economic activities;

Disabled Persons (Independent Living) Bill [HL]
Part 2 — Independent living
Chapter 2 — Right to independent living
16

(f)
support to access an appropriate range of recreational and cultural
activities.
(7)
Each disabled person to whom the responsible authorities have decided to
allocate resources under subsection (3) shall be informed of his specific
resource allocation (his “individual budget”).
5
(8)
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
receive the individual budget to be allocated to him under subsection (3)—
(a)
in the form of a payment to him (a direct payment);
(b)
in the form of a payment to any prescribed person or organisation for
10
that person or organisation to manage on his behalf and in accordance
with his wishes (an indirect payment);
(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),
15

and consequently it is the duty of the responsible authorities to inform disabled
persons of this right and to comply with their decisions.
(9)
All arrangements to be made under this section shall be agreed with the
disabled person (or his authorised representative) and written down in a
contract (the individual budget payment contract) which shall also include—
20
(a)
information for the disabled person on his right to control and use the
Individual Budget;
(b)
details of how and when the authorities will make payments;
(c)
rules concerning how the budget may be spent and what records a
disabled person or his authorised representative is required to
25
maintain;
(d)
a copy of the disabled person’s support plan and details of how he can
change it should his requirements change;
(e)
provisions for reviewing the agreement, in particular against the
outcomes set out in the support plan;
30
(f)
details of how the disabled person or his authorised representative may
complain about the operation of the agreement; and
(g)
details of how the disabled person or his authorised representative can
terminate the agreement.
(10)
Disabled persons have the right to—
35
(a)
assistance by a nominated supporter or an independent advocate;
(b)
a communication support worker;
(c)
other forms of information, advice and support,

in order to make a decision under subsection (8), to enter into an agreement
under subsection (9) and to formulate their own support plan setting out how
40
they will use payments to meet their requirements and achieve desired
outcomes, and accordingly it shall be the duty of the responsible authorities to
make arrangements for this.
(11)
The disabled person shall be given a copy of his individual budget payment
contract in a format and language which is accessible to him.
45
(12)
Disabled persons have the right to a review of their individual budget payment
contract at appropriate intervals or when an urgent need arises and

Disabled Persons (Independent Living) Bill [HL]
Part 2 — Independent living
Chapter 2 — Right to independent living
17

consequently it shall be the duty of the responsible authorities to make
appropriate arrangements for this.
(13)
In relation to disabled persons with fluctuating 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
5
respond effectively to fluctuating requirements for assistance or services.
(14)
Where the responsible authorities make a decision that it is not necessary to
allocate an individual budget or make arrangements to meet requirements
identified under this section they shall—
(a)
give the disabled person reasons for the decision;
10
(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,
control and substantive opportunities; and
(d)
ensure that records of unmet requirements inform the development of
15
an independent living strategy under section 9.
(15)
Before making any regulations under this section the appropriate authority
shall consult and involve—
(a)
disabled persons and organisations of disabled persons, including
disabled persons from black and minority ethnic communities and
20
organisations representing them;
(b)
older people and organisations representing older people;
(c)
carers and organisations representing carers;
(d)
local authorities;
(e)
NHS bodies; and
25
(f)
such other persons as may have an interest.
15
Further provisions relating to individual budgets
(1)
The right in section 14 to choose to receive an individual budget in the form of
direct and indirect payments applies to the following qualifying persons
(“payees”)—
30
(a)
a person with parental responsibility for a disabled child;
(b)
a disabled child aged 16 or 17 years;
(c)
a disabled adult;
(d)
the authorised representative of a disabled person.
(2)
Qualifying persons have the right to assistance and support in managing a
35
payment and accordingly the responsible bodies shall make arrangements for
such support.
(3)
For the avoidance of doubt, disabled persons who decide to allocate all or part
of their individual budget to services provided or arranged for them by the
responsible authorities have the right to support and services which conform
40
with their choices and aspirations and accordingly it shall be the duty of the
responsible bodies to take all reasonably practical steps to meet those choices
and aspirations.
(4)
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
45
the responsible authorities to put arrangements in place to accommodate and
respond effectively to fluctuating requirements for payments.

Disabled Persons (Independent Living) Bill [HL]
Part 2 — Independent living
Chapter 2 — Right to independent living
18

(5)
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
direct or indirect payments (and any conditions which may not be so
imposed);
5
(b)
as to the circumstances in which the responsible authorities—
(i)
may or shall terminate a direct or indirect payment;
(ii)
may require repayment (whether by the payee or otherwise) of
the whole or part of the direct or indirect payment.
(6)
The responsible authorities shall appoint an officer for the purposes of—
10
(a)
managing the system of individual budgets;
(b)
co-ordinating funding from relevant partners;
(c)
ensuring relevant staff receive effective training in the use of individual
budgets, direct and indirect payments;
(d)
promoting individual budgets, direct and indirect payments to
15
disabled persons.
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
20
or is expecting to receive) care of a prescribed description; and
(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.
25
(2)
The responsible NHS body shall notify the local authority in whose area the
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
30
shall consult the disabled person and inform him of his rights under this
section.
(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;
35
(b)
make a decision under section 14 as to the resources to be allocated and
other arrangements to be made in respect of that person;
(c)
agree a contract with the disabled person;
(d)
make available the necessary resources (the “individual budget”) and
other arrangements;
40

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—
(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
45
which—

Disabled Persons (Independent Living) Bill [HL]
Part 2 — Independent living
Chapter 2 — Right to independent living
19

(i)
the authority may provide under section 2 of the Carers and
Disabled Children Act 2000 (c. 16); and
(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
5
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
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—
10
(a)
a nominated supporter or an independent advocate; or
(b)
a communication support worker (or both),

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.
15
(8)
A disabled person to whom this section applies is entitled to a review of
arrangements and a further assessment of his requirements within such
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
20
acting as his independent advocate to be his representative in connection with
any arrangements made for him under this Act.
(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
25
the making of any arrangements for him under this Act,
(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 an individual budget for him, or
(c)
to enter into an individual budget payment contract and manage such
30
payments on the disabled person’s behalf.
(3)
For the purpose of assisting the authorised representative of a disabled person
to do any of the things mentioned in subsection (2)(a) to (c) the responsible
authorities shall, if requested by the disabled person—
(a)
supply to the authorised representative any information, and
35
(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
inspection.
(4)
Regulations made by the appropriate authority may make provision for the
40
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
unable to appoint a person as his authorised representative by reason of
significant mental or physical incapacity and such a person will be the person
45
who—

Disabled Persons (Independent Living) Bill [HL]
Part 2 — Independent living
Chapter 2 — Right to independent living
20

(a)
is deemed to be the most capable of acting in the best interests of the
disabled person and supporting their human rights, and
(b)
is willing to act in this capacity.
(5)
Regulations made by the appropriate authority may also make provision for
such appointments to be made with the consent of—
5
(a)
a deputy appointed for the person by the Court of Protection under
section 16(2)(b) of the Mental Capacity Act 2005 (c. 9), or
(b)
a donee of a lasting power of attorney created by the person.
18
Disputes between carers and disabled persons
(1)
The responsible bodies shall make arrangements to meet all reasonable
10
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
15
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.
20
(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
25
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—
30
(a)
a disabled person is in receipt of certain prescribed benefits;
(b)
a disabled person is in receipt of benefits under the Armed Forces and
Reserved Forces Pension and Compensation Schemes or a war
disablement pension;
(c)
arrangements have been made for a disabled person in relation to the
35
provision of associated support services referred to in section 14;
(d)
independent living support of whatever kind is being arranged or
provided to a person to whom section 117 of the Mental Health Act
1983 (c. 20) applies;
(e)
arrangements have been made under section 14 for a disabled person
40
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;
(f)
adaptations are made to a home where a disabled child is resident;
(g)
support necessary to achieve the minimum outcomes established
45
under section 14 is being provided.

Disabled Persons (Independent Living) Bill [HL]
Part 2 — Independent living
Chapter 2 — Right to independent living
21

(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)).
5
(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).
10
(5)
Without prejudice to the generality of subsections (1) to (4) regulations made
under this section—
(a)
shall provide that any income (including any royalties) earned by a
disabled person shall not be taken into account in assessing his ability
to pay a charge for practical support and assistance or for the costs of
15
residential accommodation;
(b)
shall provide that any occupational pension held by a disabled person
shall not be taken into account in assessing his ability to pay a charge
for practical support and assistance;
(c)
shall provide that the responsible authorities shall not take into account
20
any disability benefits received by a disabled person as income in
assessing his ability to pay for a charge for practical support and
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.
25
(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.
(7)
Before making any regulations under this section the appropriate authority
shall consult and involve—
30
(a)
disabled persons and organisations of disabled people, including
disabled persons from black and ethnic minority communities, and
organisations representing them;
(b)
older people and organisations representing older people;
(c)
carers and organisations representing carers;
35
(d)
local authorities;
(e)
NHS bodies; and
(f)
such other persons as may have an interest.
20
Determination of living arrangements
(1)
In carrying out their functions under section 14 and in making any
40
arrangements for residential accommodation for a disabled person the
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;
45
(b)
such arrangements best meet the requirements of the disabled person
(as opposed to being expedient on financial grounds); and