38 Protecting property of adults being cared for away from home
This clause updates the duty originally set out at section 48 of the National Assistance Act 1948, and re-enacts an offence associated with this duty, found at section 55 of the National Assistance Act 1948.
(1) This section applies where—
(a) an adult is having needs for care and support met under section 17 or 18 in a way that involves the provision of accommodation, or is admitted to hospital (or both), and
(b) it appears to a local authority that there is a danger of loss or damage to movable property of the adult’s in the authority’s area because—
(i) the adult is unable (whether permanently or temporarily) to protect or deal with the property, and
(ii) no suitable arrangements have been or are being made.
(2) The local authority must take reasonable steps to prevent or mitigate the loss or damage.
(3) For the purpose of exercising that duty, the local authority—
(a) may at all reasonable times and on reasonable notice enter any premises which the adult was living in immediately before being provided with accommodation or admitted to hospital, and
(b) may deal with any of the adult’s movable property in any way which is reasonably necessary for preventing or mitigating loss or damage.
(4) A local authority may not exercise the power under subsection (3)(a) unless—
(a) it has obtained the consent of the adult concerned or, where the adult lacks capacity to give consent, the consent of a person authorised under the Mental Capacity Act to give it on the adult’s behalf, or
(b) where the adult lacks capacity to give consent and there is no person so authorised, the local authority is satisfied that exercising the power would be in the adult’s best interests.
(5) Where a local authority is proposing to exercise the power under subsection (3)(a), the officer it authorises to do so must, if required, produce valid documentation setting out the authorisation to do so.
(6) A person who, without reasonable excuse, obstructs the exercise of the power under subsection (3)(a)—
(a) commits an offence, and
(b) is liable on summary conviction to a fine not exceeding level 4 on the standard scale.
(7) A local authority may recover from an adult whatever reasonable expenses the authority incurs under this section in the adult’s case.
The problem with the equivalent section under the existing law is that nobody knows whether there is power, implicit in this function, finally to sell the stuff that is being protected when an indigent person has no other assets. This would be easy to put right.
We are unclear about whether this clause is necessary and adds to current legislative powers. It is also unclear what the local authority’s requirements are to store or subsequently dispose of such property.
Overall we endorse the tone and thrust of the Draft Care and Support Bill and we strongly support the move to give people who need support the choice and control required so that they are in control of their support and their lives.
However we are extremely concerned that some sections of the Bill will be used in a way that is counter to the choice and control agenda and have the potential to put many people in a situation where they have less control than they presently enjoy.
Although we appreciate that the guidance that will be produced will ensure that the choice and control agenda is promoted we still believe that there is a need to change some sections of the Bill as it stands in the Draft form.
38 Protecting property of adults being cared for away from home; (4) subsection (a) and (b)
We have seen too many instances of local authorities taking control of someone’s life to be satisfied that these ‘safeguards’ are enough to protect individuals who find themselves in a vulnerable position from the local authority.
Therefore we would like to see the individual’s safeguarding measures designed to safe guard people from the local authority’s powers to enter and remove people’s possessions strengthened.
38 Protecting property of adults being cared for away from home; (7)
This power given to the local authority to charge for any action they take under this section gives them an incentive to take action rather than hold back from taking action.
Therefore we would like to see this removed from the Bill.
Self direct is a membership organisation and its members provide support for over 108,000 people across the UK. The views expressed in this response do not necessarily reflect the views of all self direct members.
The views expressed above are based on our experience of seeing firsthand how legislation and guidance are used; experienced gathered through working with 1,000s of professionals / practitioners across the social and health care sector whose job it is to put Government policy, legislation and guidance into practice. It is also based on our extensive knowledge and understanding of how people that need support and their carers interact with professionals / practitioners in the social and health care sector.