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No. There is a ‘no-overlap’ provision in most of the statutory regimes which confer power to provide social services, the purpose of which was probably to protect the public against free services slowly becoming more commonly provided through local authorities, and hence charged for. For instance, s29(6) NAA provides that nothing in the foregoing provisions of the section shall authorise or require the provision of any accommodation or services ‘required to be provided under the National Health Service Act 1977’. Section 45(4) of the HSPH Act makes similar provision to that in s29(6). The meaning of a similar clause to these, in s21(8) NAA, was the subject of heated debate in the Court of Appeal in the Coughlan appeal against North and East Devon Health Authority about the purchase of nursing services in conjunction with nursing home accommodation. It was held that the wording ‘required to be provided under the NHS Act 1977’ effectively meant that if the DoH required HAs to provide particular types of services as part of the Health Service (hence for free) through guidance or directions, then the local authority power was ‘suspended’ while the relevant DoH Circular guidance had effect. This means that it is important for local authorities to be well up on the contents of circulars relating to intermediate care and continuing care, (where the same services could in fact be seen as either a Health OR a social services function) and be ready to contend that the social services cannot be provided whilst that guidance makes its provision the responsibility of the Health Service. Authorities should use the argument that since intermediate care guidance expects Health Authorities to provide for rehabilitation and residential/nursing respite to facilitate discharge from hospital, local authorities are barred from providing it as a social service. However, some health authorities/PCTs are simply refusing to negotiate over intermediate care and it remains to be seen whether there will be sanctions from the DoH in this regard. |
