SIM 07/2008/03
This circular provides advice to health and safety regulators (for clarity and convenience referred to as inspectors) who are involved in the regulation of social care activities. The circular explains the priorities that Local Authority Social Service Departments (LASSDs) and social care providers have with regard to supporting adults and older people who need care and support to live with dignity and independence within the community, whilst ensuring risks are identified and managed. The general principles of risk management will also apply to the health care sector.
1 This circular updates and replaces previous advice found in SIM 7/2000/08 Social Services: Social Inclusion and Elective Risk.
2 In England and Scotland local councils with social services responsibilities (in conjunction with their partners) are responsible for assessing the needs of people who may require care services. Their aim is to enable people to make choices about how their needs can be met and to help them to lead as ordinary lives as possible. The challenge is to ensure that any risks identified are managed proportionately and realistically whilst not unnecessarily curtailing their independence.
3 In England the Department of Health launched 'Independence, choice and risk: a guide to best practice in supported decision making .' on 21 May 2007. The aim of the guidance, produced by the Department of Health (DH) was to provide a risk framework for everyone involved in supporting adults (over 18) within any health and social care setting.
4 The principles contained in the SIM will apply to Wales. However due to the imminent restructuring of the health and social care sector in 2009 it has not been possible to include the care assessment framework for Wales.
5 In England the National Health Service and Community Care Act 1990 places a duty on LASSDs to assess an individual's social care needs and having regard to the results of the assessment decide whether the needs of that person calls for the provision of any services. The Act represented a major step in the road from expert–led, universalist 'welfare' to personalised packages of social care, designed with the full involvement of people to meet their individual needs.
6 The general principles of assessment and care management should enable people to live 'ordinary lives' as far as possible in their own home or in a homely environment in the local community. The emphasis is on promoting people's independence, treating them with dignity and respect, tailoring services to meet their needs and encouraging them to do what they can for themselves.
7 The equivalent provision in Scotland lies in section 12A of the Social Work (Scotland) Act 1968 and the relevant guidance also refers to factors such as people's independence and choice over how they live (CCD 8/2001- Single shared assessment for community care needs ).
8 The assessment process may also consider the nursing needs of the person being assessed and in some cases where the needs are complex the local Primary Care Trust (in England) will be responsible for commissioning and funding the nursing care. In other cases the LASSD may commission and fund the social care element of a package whilst the PCT pays for the nursing care. Similar arrangements exist in Scotland. Further detailed information about the care assessment framework, including the eligibility for people to receive funded health and social care can be found in Annex A.
9 HSWA section 2 requires employers to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all their employees; and HSWA section 3 requires employers and the self employed to conduct their undertaking in such a way as to ensure, so far as is reasonably practicable, that other persons not in their employment, (for example people who use care services) are not thereby exposed to risks to their health and safety.
10 Employers and self employed persons are also required by regulation 3 of the Management of Health and Safety at Work Regulations 1999 (MHSWR) to assess the risks to workers and others (for example people who use care services) who may be affected by their work or business.
11 Individuals with an eligible need will be offered appropriate services based on their assessments. A written care plan is produced which sets out precisely what the health and social care needs are and how they will be met. The level of care may range from home help through to the provision of accommodation with nursing.
12 LASSDs (and PCTs where they are funding nursing care) are required to review the care plan and associated risk assessments at regular intervals to ensure that the services are still relevant and continue to meet the needs of the individual. This is consistent with the requirements under health and safety legislation to review risk assessments.
13 Conflicts could arise between the risks identified in the risk assessment and the steps the individual wants to take to ensure that his or her autonomy is not compromised and to enable active engagement in the wider life of the community. The DH publication mentioned in paragraph 3 provides health and social care professionals with guidance on this issue.
14 The DH acknowledges in their guidance that HSE's 'five steps to risk assessment' provides a framework to achieving the delicate balance between ensuring the safety of the care worker and promoting the independence and well-being of the person using care services.
15 As part of the care assessment, LA social care professionals, in conjunction with the person due to receive services and possibly others, (for example the PCT, family or advocate) will decide how support will be delivered and where. Support can be delivered in a number of ways:
16 Annex B provides a synopsis of the various care options available and guidance on the relevant enforcing authority for the purposes of the HSWA.
17 Local social services are the responsibility of individual councils. Members of the public who are unhappy with their care needs assessment and the level of provision allocated to them should be directed to their LA who are required by law to have a social services complaints procedure. Should their complaint not be resolved they can then complain to the Local Government Ombudsman in England or the Scottish Public Services Ombudsman in Scotland. The Local Government Ombudsman system was set up by the Government to monitor the actions of LAs. Likewise any concerns about the level of nursing care arranged by the NHS should be referred to relevant Health Authority.
18 The moving and handling needs of the person receiving care services will need to be considered in their care plan where mobility is an issue. As with other aspects of care, LASSDs. PCT's and care providers are required to balance the safety (and rights) of paid staff with the assessed needs and human rights of the people using care services.
19 It is important that physical risks to care workers and people who use care services are taken into account as well as the wider risks to the person if they are not suitably assisted, for example, loss of independence. Further guidance on this issue can be found in the HSE publication 'HSG225-Handling Home Care' (ISBN 0-7176-2228-2), The Guide to the Handling of People', 5th edition (ISBN 0-9530582-9-8) and the DH guidance mentioned in paragraph 3.
20 The key to complying with health and safety legislation, care standards legislation, the Community Care Act and section 12A of the Social Work (Scotland) Act 1968, is to ensure that risks are adequately assessed and managed, and where accommodation is provided, it meets the needs of the person using the care service.
21 Where a social care professional's assessment of needs highlights particular risks, for example a person cannot judge the temperature of hot water or hot surfaces, is at risk of falls from unsecured windows or is prone to self harm, then the individual will need a suitable environment, or one created for them, which has appropriate controls in place. On the other hand, another individual may be able to judge the risks encountered in ordinary daily life and a less controlled environment would be appropriate, in accordance with the principle of social inclusion. Fitting all windows with restrictors for example, while protecting the vulnerable individual, would also limit the possibility of ordinary living for others who may not be at risk.
22 In such circumstances, the LASSD and/or care provider would need to take appropriate measures to properly manage the risks to the vulnerable person's health and safety. This may, for example, involve implementing suitable control measures throughout the premises or by providing alternative accommodation that meets the particular individual's needs. It is the responsibility of social services and/or the care provider to determine what action to take, but a reliance on supervision as the sole control measure in that situation is unlikely to be sufficient.
23 Residential/nursing care: Where residential care (with or without nursing) is the preferred option, LASSDs will make suggestions as to where places are currently available that will meet the identified needs of the individual (unless the person is eligible for continuing NHS Health Care in which case the PCT will be responsible- see Annex A, paragraph 7). The care home may be one owned and managed by that LA or one that has entered into a contract with the LA to deliver care. The care home could be within the LA boundary or outside of it, possibly some distance away at the request of the person using the service or their family.
24 When LASSDs (or PCTs) commission care services they will be subject to the duty under HSWA section 3 as described in paragraph 9 and 10. In the first instance they will need to take reasonable steps to ascertain that the home in which the person is to be placed has adequate health and safety arrangements in place, according to the particular needs of the individual. In order to ensure that the home continues to provide care in a safe manner they will also require suitable arrangements for monitoring and reviewing those care homes who they commission services from.
25 Supported living: For many years LAs provided homes or arranged accommodation for individuals, which provide an intermediate between a fully supervised and managed home environment, and complete independence. Where appropriate individuals were encouraged to develop or maintain their independence for as long as possible. This required some level of risk taking to enable them to develop the necessary skills associated with 'ordinary living'.
26 In recent times many local authorities have moved away from 'hostel' type accommodation and have developed a supported housing model for people with learning disabilities who can live independently but with some level of support.
27 The level of risk management in each supported living environment will vary, but it is important that the needs and capabilities of each individual are assessed to ensure the accommodation and support provided is suitable.
28 Homecare services: In many cases, LASSDs will only be funding home care services and will therefore have less control over the living environment. In these circumstances LASSDs are still required to undertake risk assessments of the environment and suggest remedies, but those with mental capacity may choose not to follow the advice.
29 This does not detract from the general duties placed on the LASSDs by HSWA sections 2 and 3 in respect to the health and safety of staff and the person receiving support. For example, a bath in a domestic setting will not normally be fitted with a thermostatic valve to limit the temperature of the hot water to 44 °C. In this instance the LASSD should ensure that their own in-house care staff and any agency staff are fully trained in safe bathing procedures (including the need to use bath thermometers where the risk assessment warrants it).
30 The scope of HSWA section 3 is wide and HSE/LAs exercise discretion in deciding what enforcement action is appropriate in accordance with HSE's Policy Statement on the enforcement of HSWA section 3 .
31 In areas outside HSE/LA priorities, consideration is given to whether activities that give rise to risk are better regulated by other authorities who may be more suitably placed than HSE to address the risks in question. For example, HSE/LA will give a lower priority to the enforcement of HSWA section 3 where the principal issues involved are the level or quality of care provided, or relate to clinical judgements, such as diagnosis, the choice of treatment and the standard of healthcare. Such issues are regulated by a range of other bodies, including Commission for Social Care Inspection (CSCI), the Scottish Commission for the Regulation of Care (the Care Commission) the Healthcare Commission, the General Medical Council and the Nursing and Midwifery Council.
32 That said, there may be circumstances where HSE/LAs and/or the police may be involved in investigating deaths and serious injuries to service users under the work-related deaths protocol, for example, where serious systematic failures in the arrangements for delivery of care indicate significant failure to manage health and safety, and service users are exposed to a high level of risk, including risk of death or major injury.
33 Even where another body has responsibility for addressing risks to non-employees, HSE/LA may need to take action to secure control of an immediate risk. Further guidance on this can be found at Dealing with imminent danger .
34 Inspectors should also refer to the guidance listed in paragraph 41 for further information and enforcement advice on risks arising from hot water, hot surfaces, falls from windows and the use of bedrails.
35 CSCI was the single, independent inspectorate for all social care services in England until 31 March 2009. A working arrangements protocol between HSE, LACORS (on behalf of LAs) and CSCI was signed on 3 November 2008. The protocol facilitates effective working relationships between the organisations and aims to improve health and safety standards within the care sector by using respective resources and expertise more effectively.
36 CQC was established by the Health and Social Care Act 2008 to regulate the quality of health and social care and look after the interests of people detained under the Mental Health Act. It brings together the work of CSCI, the Healthcare Commission, and the Mental Health Act Commission. CQC became a legal entity in October 2008 and took up its responsibilities for the quality of health and social care in April 2009. A new system of registration is replacing the one operated by CSCI and for the first time NHS providers will also be within a legally binding system of registration. However, CQC will be working to the existing care standards statutory framework until April 2010 and will follow the principles of the Working Arrangements Protocol until it is reviewed.
37 In Scotland, the Scottish Commission for the Regulation of Care (the Care Commission) was set up under the Regulation of Care (Scotland) Act 2001 to establish a unified system of registration and regulation for social care services in Scotland including early education and independent and private health care. The Care Commission (CC) carries out regular inspections (at least twice a year for 24-hour care providers and annually, as a minimum, for others) to make sure that services meet the required minimum standards. Both HSE and CC have legitimate interest in matters concerning regulation in the care sector. However, because workplace health and safety is a reserved matter, HSE/LA inspectors in Scotland remain responsible for the regulation of risks to service users arising out of or connected with work. A protocol, which will clarify the roles and responsibilities of HSE and CC, is being developed.
38 Care and Social Services Inspectorate Wales (CSSIW) is an operationally distinct division of the Department of Public Services and Performance in the Welsh Assembly Government. They inspect and review local authority social services and regulate and inspect care settings and agencies. CSSIW's national office, currently based at two locations in Cathays Park, Cardiff and Nantgarw, leads on managing and analysing information to deliver all Wales reviews and provides professional advice to improve services.
39 The SIM will be reviewed once the Care Quality Commission has become fully established in April 2010.
40 Inspectors should be aware of the diversity needs of the target group. They should give consideration to, and factor in issues such as literacy, English as a second language and disability (e.g. access needs).
The Diversity & Delivery pages give more information on these and other issues, including the Communications and EIA toolkits.
41 This SIM supplements the guidance already provided in the following documents:
1 The principles contained in the SIM will apply to Wales. However due to the imminent restructuring of the health and social care sector in 2009 it has not been possible to include the care assessment framework for Wales.
2 Under the requirements of the National Health Service and Community Care Act 1990 (in England) and section12A of the Social Work (Scotland) Act 1968 everyone is entitled to have their needs assessed and to have those needs set out in writing, using the appropriate framework :
3 As part of this assessment LA social service professionals consider which risks cause serious concern, and which may be acceptable or viewed as a natural and healthy part of independent living. The risks could be wide-ranging and may include their ability to negotiate stairs safely, prepare their own food, judge the temperature of hot water or the risk of falling etc.
4 The LA then decides how critically the service is needed. The criteria for this in England are laid down the document 'fair access to care services ' (FACS). Whilst no guidance has been issued in Scotland the principles of assessment will be similar.
5 In England people will normally only receive publicly funded support if they have i) care and support needs sufficient to meet the local eligibility criteria, and ii) income and assets below certain limits. A financial assessment is undertaken to determine the latter. People who are not eligible based on these need and financial tests will have to decide about and fund their own social care needs.
6 The situation is slightly different in Scotland due to the reforms introduced by the Community Care and Health (Scotland) Act 2002, whereby some funding for health and social care is available to people regardless of their income.
7 During the course of the assessment the care professional may identify the person requires nursing support. In those cases a Continuing Health Care Assessment(CHC) would be undertaken and passed to the Primary Care Trust. A muliti- discilplinary team would then assess the persons nursing needs and if they met the criteria for 'continuing health care' or 'intermediate care' the PCT will commission and pay for the whole service. If the person does not meet the criteria for CHC but does have health care needs the PCT will only fund the nursing element of a care package. Similarly, under certain circumstances the NHS in Scotland may continue to arrange and fund continuing in-patient care which can be provided in a hospital, hospice or care home. In some cases the 'health care needs' may be met by social care staff and in such cases the LASSD will fund the whole placement (taking into account the eligibility criteria discussed above).
8 As part of this assessment process LA social service professionals and care providers consider whether a person has 'capacity' to make particular decisions for themselves. The principles and practices to be followed, in England, are laid down in the Mental Capacity Act 2005 and its code of practice (in Scotland it is the Adults with Incapacity (Scotland) Act 2000). These principles include the assumption that the person has capacity, ie it should be assumed that people are capable of understanding their situation and taking decisions until proven otherwise, even if the decision is ill-advised and is at odds with the views of the family, friends or care professionals.
9 Where someone lacks capacity to make a decision about a course of action, including those involving risks, the Acts and code of practice set out who can take the decision and in what circumstances. There are important safeguards, including specific criteria for determining a person's best interest. Further guidance on this issue can be found in the DH guidance mentioned in paragraph 3 of the main SIM.
1 The Health and Safety Enforcing Authority Regulations 1998 (EA Regulations) determines the relevant enforcing authority with regard to the HSWA.
2 Given the wide variety of accommodation, it is impossible to provide advice for every scenario. The guidance below provides some useful indicators but in some cases further advice might need to be sought from the local CQC, CC or CSSIW office, the public services sector or the local Enforcement Liaison Officer.
3 'Domestic premises' are defined in section 53(1) HSWA as 'premises occupied as a private dwelling'. The EA Regulations provide that enforcement responsibility for the common parts of domestic premises falls to HSE, as does any work activity carried out in domestic premises where there is no independent means of access other than from the domestic areas of the property. The common parts, may include lift, stairwells etc.
4 Care delivered in a persons own home by the LA, Primary Care Trust or nursing/domiciliary care agency will attract the requirements of HSWA and HSE would be the relevant enforcing authority. However LAs will be the enforcing authority for the office activities of the agencies themselves (with the exception of LA in house provision where HSE would enforce), and would therefore have a role in regulating health and safety management arrangements.
5. The types of premises that will normally fall into the definition of 'domestic premise' will include:
6 There are 3 main types of accommodation:
7 Adult placement schemes (APS) are similar to fostering schemes but for adults rather than children. They are locally run schemes that place between one to three adults with care or support needs with an adult placement carer. They ensure that these adults are able to enjoy an ordinary and independent life in the community and share in the family life of a carer.
8 LAs will be the enforcing authority for the office-based activities except for LA in house services. For the work of the actual adult placement carers in domestic premises HSE will be the enforcing authority.
9 Direct payment schemes are administered by LAs: the local authority provides the service user with money to fund their own care. The service user makes his/her own arrangements to obtain personal care either through an agency or by directly employing a personal assistant/care worker. In the latter case the care worker/personal assistant may fall within the exclusion contained in section 51 HSWA, but this will depend on the facts of the case. Section 51 excludes the application of Part 1 HSWA to the employment of domestic servants in a private household. Further guidance on employment status and section 51 can be found in the HSE Enforcement Guide .
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