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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;

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(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

 
 

 
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