This is a considered opinion by a barrister and does not say ""Once a
disabled person has been assessed as need, under s4 the NHS and
Community Care Act 1990 then the local-authority and health have to meet
that persons assessed-needs".
This opinion provides a very helpful overview of the relevant statutes and
caselaw and concludes, which must be read carefully, reinforcing what had
been previously posted.
36. Of necessity, this papers provides an overview of the provision of
community care services. The lawfulness of any assessments or community
care provision decisions will be scrutinised in judicial review
applications. The courts are willing to do so provided that there is a
serious justiciable issue to be considered. The courts are, however,
reluctant to intervene when they are in effect being asked to make the
assessment, or to enforce the provision of services on a day to day basis,
themselves. Thus, for issues to attract the attention of the administrative
court it is necessary to show that there has been a serious failure to
comply with statutory obligations, or to comply properly with such
obligations.
37. The more practical questions of the enforcement of the obligations to
provide, or to assess for, community care services will depend upon
relationships developing with the relevant local authorities, and to a real
extent with the cooperation of the individuals to whom care should be
provided. Local authorities, and health authorities, are notoriously short
of funds. They, and courts, may be very reluctant to enforce community care
obligations as a means of reducing the burden upon insurers and/or the
NHSLA. This may well shape any developments in relation to the obligation to
provide community care services for those who have good personal injury or
clinical negligence claims.
38. However, equally persuasive, will be the interest in ensuring that
community care services are not denied to those who need care and attention
or welfare services, simply because their families have the ability to pay
for them. Such persons can of course be charged for local authority services
(except those under section 117 of the Mental Health Act 1983). The charging
provisions would be meaningless if those with resources were denied
services. The precise terms of the charging provisions, and the matters
which can or cannot be taken into account indetermining the individual's
resources, should not be allowed to impinge upon that general principle.
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