SOUTH TYNESIDE SPECIFIC INFORMATION

South Tyneside Housing Strategies 

RELEVANT INFORMATION

Integrated Health and Social Care for People Experiencing Homelessness (NICE)

Housing LIN (Learning and Improvement Network)

Homelessness: duty to refer – for NHS staff (Department of Health and Social Care)

Capacity and Housing Issues (39 Essex Chambers)

September 2022: This chapter has been updated to include reference to a new category of primary need which was introduced in the Domestic Abuse Act 2021.

1. Introduction

The relationship between local housing and adult and social care departments can be complex because there are often legal and practical difficulties arising from circumstances where vulnerable adults and families fall below or between two legal frameworks. Their needs may not be sufficient to qualify them under the Care Act 2014 (CA) but they may also not meet the criteria for a positive housing decision because they do not have sufficient vulnerability to be assessed as being in ‘priority need’ (see Section 4.2.2, Section 189: Priority Need).

The CA allows the local authority to provide any type of accommodation which may be called ‘ordinary accommodation’, that is “accommodation in a care home or in premises of another type” where they would receive care and support services relevant for their assessed needs.

From an adult social care perspective, the local authority must not meet a person’s care and support needs by taking any action which is required – either by itself or another local authority – under the Housing Act 1996 (HA) or other housing related legislation. A local authority can provide ordinary accommodation under the CA when they are not under a duty to provide that person with accommodation under the HA.

Once the local authority has assessed an applicant’s needs as satisfying the relevant criteria, it must provide accommodation on a continuing basis so long as the need of the applicant remains as the same as originally assessed.

A local authority from an adult social care perspective may provide ordinary accommodation, and any other service within reason, to an adult whom it assesses as needing care and support under the CA; whether or not the local authority uses that power is for it to decide.

See also Appendix 1: Further Information.

2. South Tyneside Homelessness Service

Click on the link to view Homelessness: South Tyneside Homes

3. Safeguarding Concerns

Adults who are homeless may be vulnerable to abuse, whether they are rough sleeping, sofa surfing or in temporary accommodation. For example their lack of stable accommodation can leave them vulnerable to physical, emotional or sexual abuse, criminal exploitation and their possessions vulnerable to theft.

Staff who work with adults who are homeless should be aware of the increased possibility of safeguarding issues, be able to recognise the signs of potential abuse and to take action if they suspect that someone is being abused (see Stage 1: Concerns chapter).

4. Homelessness Legislation

4.1 Housing Act 1996

The main legislation that addresses local authority duties in relation to people who are homeless is the Housing Act 1996. This states the legal requirements that underpin local authority action to prevent homelessness and provide assistance to people who are threatened with homelessness or who are homeless.

In 2002, the legislation was amended through:

  • the Homelessness Act 2002 which means each local housing authority has a duty to undertake a review of homelessness and to develop and implement an effective strategy to deal with homelessness in consultation with both Social Services and other organisations; and
  • the Homelessness (Priority Need for Accommodation) (England) Order 2002 which extended the class of persons with a priority need for accommodation to six additional categories:
  • 16-17 years old;
  • 18-20 care leavers ;
  • vulnerable care leavers;
  • former members of the armed forces;
  • vulnerable former prisoners;
  • persons fleeing violence.

These were introduced to ensure a more strategic approach to tackling and preventing homelessness and to strengthen the assistance available to people who are homeless or threatened with homelessness by extending the priority need categories.

The Domestic Abuse Act 2021 further added to the categories of priority need by extending these to include people who are made homeless as a result of domestic abuse.

4.2 Homelessness Reduction Act 2017

The Homelessness Reduction Act 2017 (HRA) amended the Housing Act 1996.

One of the aims of the HRA is to ensure that all eligible households who are homeless or threatened with homelessness receive genuine and effective advice and assistance to help them secure accommodation. The HRA aims to widen access to homelessness advice and prevention services for all households who are experiencing homelessness or who are at risk of losing their home. It introduced a statutory duty to carry out assessments on all applicants, as well as duties to prevent and relieve homelessness in all cases.

Key sections in the Act are outlined below.

4.2.1 Section 179: Expanded the general duty to provide advice

Local housing authorities have a duty to ensure that advice and information on homelessness prevention and on how people can access help and support when homeless is made available free of charge. The HRA specifies the types of information that have to be made available and requires that advice and information be tailored to meet the needs of the following specific groups:

  1. people released from prison or youth detention accommodation;
  2. care leavers;
  3. former members of the regular armed forces;
  4. victims of domestic abuse;
  5. people leaving hospital;
  6. people living with a mental illness or impairment; and,
  7. any other group that the authority identify as being at particular risk of homelessness in their area.

The local authority can provide this advice themselves or arrange for other agencies to do it on their behalf.

4.2.2 Section 189: Priority Need

A person who is homeless and who approaches the local authority for assistance (known as an eligible applicant) has to fall into one of the priority need categories in order for the local authority to have a duty to obtain temporary accommodation for them. The following people have a priority need for accommodation:

  1. a pregnant woman or a person with whom she resides or might reasonably be expected to reside;
  2. a person with whom dependent children reside or might reasonably be expected to reside;
  3. a person who is homeless or threatened with homelessness as a result of an emergency such as flood, fire or other disaster;
  4. homeless 16 and 17 year olds;
  5. care leavers aged 18, 19 and 20;
  6. a person who is vulnerable as a result of old age, mental illness or handicap or physical disability or other special reason, or with whom such a person resides or might reasonably be expected to reside;
  7. people who are vulnerable as a result of time spent in care, the armed forces, prison or custody;
  8. people who are vulnerable because they have fled their home because of violence;
  9. A person who is homeless as a result of being a victim of domestic abuse. There is no requirement that the person must have ceased to occupy the accommodation for this category of priority need to apply. A person is considered homeless if accommodation is unreasonable to continue to occupy because it is probable that this will lead to domestic abuse against them or someone in the household.

The term ‘vulnerable’ is not defined in the legislation, but the Homelessness Code of Guidance (para 8.16) contains guidance and case law has considered how to define and interpret ‘vulnerable for example, Hotak v Southwark LBC; Kanu v Southwark LBC; Johnson v Solihull MBC [2015] UKSC 30. The Supreme Court judgment decided in these cases a homeless person is in priority need if they are vulnerable compared to the average person, not the average homeless person (Johnson vulnerability).

The test involves comparing the ability of the applicant to deal with the effects of being homeless with the ability of a hypothetical ordinary person to deal with the same situation. In order to be deemed vulnerable, the applicant must be:

  1. significantly more vulnerable than an ordinary person in need of accommodation; and
  2. likely to suffer greater harm in the same situation.

See also Appendix 1: Further Information, The vulnerability test.

Vulnerability in this context relates to a person’s vulnerability if they are not provided with accommodation, not their general ‘need of care and support’.

4.3.3 Section 189A: Assessments and Personalised Housing Plans where the person is homeless or threatened with homelessness.

Local housing authorities must carry out an assessment where an eligible applicant is homeless or threatened with homelessness. This should identify what has caused the homelessness or threat of homelessness, the applicant’s housing needs and any support they need in order to be able obtain and stay in new accommodation.

Following the assessment, the local authority must work with them to develop a personalised housing plan. This should contain actions for the local authority to help them secure new suitable accommodation. A copy of the assessment and the plan must be given to the person, and both must be reviewed whilst the local authority continues to have any duty to them.

Practically, the local authority must try to agree a written list of the actions that each party will take. If they cannot be agreed, the local authority must produce a record of the reasons for the disagreement and detail what steps the local authority will take and those steps expected from the applicant. Until a point at which the local authority decides it does not owe a duty to the applicant, it has to keep the assessment under review, together with the appropriateness of any agreement reached or steps taken.

4.3.4 Section 189B: Relief Duty

The local authority has a duty to provide support and help to all eligible people who are homeless. This is met by helping a person secure suitable accommodation, where they have a reasonable possibility of staying for at least six months. The relief duty can remain in place for up to 56 days. If the applicant is still homeless at the end of this period the local authority must decide what further duty, if any, is owed to them.

The relief duty applies to all eligible applicants who are homeless; it is not conditional upon them being in a priority group.

The local authority can consider a person’s local connection when a relief duty is in place. If they do not have a local connection to the local authority and have a safe local connection to another local authority area, the local authority can decide to refer their case to the other area.

4.3.5 Duty to help to secure accommodation

Housing authorities have a number of duties and powers to secure accommodation for an applicant. The HRA introduces a duty of ‘help to secure’ accommodation for all applicants under prevention and relief duties. This does not mean that the housing authority has a duty to directly find and secure the accommodation, but involves them working with an applicant to agree reasonable steps that they and the local authority will take to identify and secure suitable accommodation.

The prevention or relief duty will be met if any type of suitable accommodation can be found when helping the applicant to secure accommodation. It can often be met by helping them to secure a tenancy; it can also be met by helping them to secure any type of suitable accommodation, including accommodation occupied under a licence.

The local authority can secure suitable accommodation in the following ways:

  1. providing it themselves; or
  2. arranging that the applicant obtains it from some other person; or
  3. giving the applicant advice and assistance so that accommodation is available from some other person (in R v (Miah) v Tower Hamlets LBC [2014] EWHC 1029 advice to meet the duty then ends the duty).

The local authority must provide temporary accommodation for applicants who are in a priority need group whilst it performs the relief duty.

4.3.6 Section 191: Intentionally homeless

A person becomes intentionally homeless if they deliberately do something, or fail to do something that as a direct consequence means they no longer live in accommodation that was reasonable for them to stay in.

The local authority must be satisfied that all five elements of the intentional homeless (IH) test apply.

  1. What did the applicant do or fail to do?
  2. Did it lead to a loss of the accommodation as a consequence of an act or omission?
  3. Was there a termination or interruption in the occupation as distinct from a failure to take up accommodation?
  4. Was the accommodation available for the homeless person’s occupation?
  5. Would it have been reasonable for the homeless person to continue to occupy the accommodation?

A person will also be found to be intentionally homeless if they enter into any arrangement under which they are required to leave the accommodation which it would have been reasonable for them to continue live in, if the purpose of that arrangement was to enable them to claim assistance as a homeless person.

In considering whether a person deliberately becomes homeless the local authority has to ask whether the loss of accommodation would reasonably have been regarded as a likely consequence of that person’s deliberate conduct:

  • ‘deliberate’ relates to the act or omission;
  • ‘likely’ means a real or serious possibility;
  • the link between the act and the homelessness must be judged objectively;
  • the deliberate act must have contributed in some measure to the loss of the home.

There may be a number of causes of the homelessness, some of which may be ‘innocent’ but the applicant will still be IH if the local authority – on the balance of probabilities – is satisfied that homelessness was a likely consequence of a deliberate act. Examples are:

  • the applicant’s tenancy was not renewed by the landlord and was a reasonable result of the behaviour of not paying rent or withholding rent;
  • an applicant guilty of ASB or criminal behaviour is forced to leave their home because of i.e. threats. They are IH because the accommodation would have been reasonable to occupy but for ASB.

Where the homeless person took action or failed to act, there is a good faith test that has to be considered in regard to a deliberate act, that is, was the applicant acting honestly or were they genuinely ignorant of a relevant fact?

If it is decided that a person is intentionally homeless, this limits the duties and assistance the local authority can give them. At the most, if they are also in priority need, they will be provided with temporary accommodation for a reasonable period only. This period – usually around 28 days – is to allow them to make their own arrangements to secure alternative accommodation.

4.3.7 Section 195: The Prevention Duty

The local authority has a prevention duty to provide support and help to all eligible people who are threatened with becoming homeless within the next 56 days. This duty is often be met by providing assistance to enable a person to remain in their current home, where possible, however where this is not feasible it can be met by helping them move to another home in a planned way, without them becoming homeless.

This duty applies to all eligible applicants who are threatened with homelessness, it is not conditional upon the applicant being in a priority group and it does not require an applicant to have a local connection to the area. The duty remains in place for up to 56 days, although it can be longer, if required.

4.3.8 Section 195: A change to the meaning of ‘threatened with homelessness’

Under the HRA, households are considered to be threatened with homelessness if they are considered to be threatened with homelessness in the next 56 days. This period has been doubled from previous legislation in the HA, previously it was 28 days from date they presented for accommodation.

This is to require local authorities to intervene to provide assistance at an earlier stage, so there is increased opportunity to achieve a successful homelessness prevention outcome. The local authority is obliged to take reasonable steps to help the applicant secure that accommodation so it does not cease to be available for their occupation. In deciding the steps to take the authority must have regard to its own assessment.

4.3.9 Section 199: Local connection and a local connection for care leavers

An applicant has a local connection to an area if they are:

  1. normally resident in the area (usually for six of the past 12 months, or for three out of the past five years);
  2. employed in the area;
  3. have family associations to the area; or actual relationships are often considered more important than blood ties
  4. have other special circumstances that give them a connection.

A local connection is determined by the facts and circumstances at the date that the local authority completed its enquiries.

A care leaver aged under 21 who was previously in care in the area for at least 2 years has a local connection, even if they were placed there by another council.

They will also have a local connection if the are under 25 and get advice and support from the local authority Children’s Social Care department under a pathway plan.

If the pathway plan is provided by a county council, the care leaver will have a local connection to every local housing department in the county council area.

4.3.10 Section 213B: Duty to Refer

The HRA introduced a duty to refer, which is placed on other public sector bodies, not the local housing authority. Social care services, including adult social care, are subject to this duty.

The aim of this duty is to help early identification of households who are homeless or threatened with homelessness, and to build on / develop joint working relationships between organisations in order to effectively prevent and relieve homelessness. The following organisations are subject to the duty to refer, and must refer people who they come into contact with, who are experiencing homelessness or who are threatened with becoming homeless:

  • prisons;
  • youth offender institutions;
  • secure training centres;
  • secure colleges;
  • youth offending teams;
  • the probation service;
  • Job Centre Plus;
  • social service authorities;
  • emergency departments;
  • urgent treatment centres;
  • hospitals in their function of providing inpatient care;
  • the Secretary for Defence in relation to former members of the regular armed forces.

The organisation must first have consent from the person they are going to refer. The person must then nominate a local authority in England where they want the referral to be sent. The referral itself will not mean a homelessness application has been made.

4.4 Summary of the main provisions of HRA

  1. The legislation introduces requirements for local housing authorities to carry out homelessness prevention work with all those persons who are eligible for help and threatened with homelessness.
  2. The HRA changes the point at which a person is classed as being threatened with homelessness from 28 days to 56 days.
  3. It makes changes to the way local authorities assess and the point in time in which a person becomes homeless or is threatened with homelessness. The HRA requires local housing authorities to carry out an assessment of the applicant’s needs and that the steps agreed between the local housing authority and the applicant are set out in writing in the form of a personalised plan.
  4. A duty is placed on local housing authorities to take steps for 56 days to relieve homelessness by helping any eligible homeless applicant to secure accommodation.
  5. A further duty was introduced that is owed to certain applicants who deliberately and unreasonably refuse to co-operate with local housing authorities.
  6. The legislation specifies that local agencies should refer those persons who are either homeless or at risk of being homeless to local housing authority teams.
  7. Provisions are made for certain care leavers to make it easier for them to show they have a local connection with both the area of the local authority responsible for them and the area in which they lived while in care if that was different.

4.5 Applying the Equality Act 2010 in regard of Priority Need and Disability

The definition of disability in the Equality Act 2010 (EA) is “a person has a disability if s/he has a physical or mental impairment which has a substantial and long term adverse effect on that person’s ability”.

When making decisions about priority need under the EA, the local authority must ensure it has taken all steps to gather all relevant information relating to the applicant’s mental or physical disability.  Workers should undertake a full assessment interview with the applicant, focus on questions that relate to any physical or mental impairment and ask how the impairment might impact on them if they were to become or remain homeless.

The Supreme Court stated that the EA is ‘engaged’ when making decisions on vulnerability where the applicant has a relevant protected characteristic: age; disability; gender; gender reassignment; pregnancy and maternity; race; religion or belief and sexual orientation. The court accepted that on priority need a protected characteristic will be a disability and these questions should be considered:

  1. What is the extent of the applicant’s disability?
  2. What is the likely effect of the disability on the applicant when taken together with that person’s other problems?
  3. Is the worker satisfied that relevant third party inquiries have been undertaken into any mental or physical impairment to demonstrate that the applicant meets the requirements set down by the EA?

If the applicant is found not to have a priority need category the reasons must be set out.

The local authority may find an applicant comes under the definition for the disability protected characteristic in a priority need, but does not automatically become eligible because they meet the definition.

If a local authority reaches a decision that on the evidence they are not vulnerable, despite coming under the disability protected characteristic, it must justify the decision as a proportionate means of achieving a legitimate aim, which is to meet the obligation set by the homeless legislation to decide when a person’s disability makes a person vulnerable under the EA.

5. Useful Resources

5.1 Homelessness Code of Guidance for Local Authorities

The Homelessness Code of Guidance for Local Authorities provides statutory guidance that all local authorities must consider when carrying out their duties relating to homelessness and preventing homelessness. The code is issued specifically for local authority members and staff, including social care services (see Section 4.3.10, Section 213B: Duty to Refer).

The guidance includes information on preventing and tackling homelessness, including joint working between housing and other services to secure accommodation and provide support. It also covers the duty to refer, although it was published prior to the implementation of the HRA.

5.2 Other useful resources

  • National Homelessness Advice Service NHAS: Useful information and resources for local authority staff, housing providers and members of the public. Requires a log in to access some resources.
  • Shelter Legal: Detailed and useful resources on homelessness applications, legal duties, security of tenure, rents, benefits etc.

Appendix 1: Further Information

  1. Residential accommodation

In R v Kensington and Chelsea RLBC Ex p Kujtim [1999] CCLR 340 CA the Court of Appeal held that residential accommodation could include ‘ordinary’ housing accommodation. A duty to supply such accommodation arose where a person needed care and attention, including housing accommodation when it is not available. The need for care is a precondition for this duty. Although CA uses the phrase ‘care and support’ instead of the term under the National Assistance Act 1948 (NAA) ’care and attention’, it has been held that the case law under the NAA still applies.

In R (SG) v Haringey LBC [2015] EWHC 2579 (Admin) it was held a local authority needs only provide under CA a response to an accommodation related need.

Deputy High Court Judge Bowers “The service provided in a non-home environment, would be rendered effectively useless if the claimant were homeless sand sleeping on the street”.

2. The vulnerability test

The vulnerability test is practically applied by asking the following questions:

  1. What are the person’s problems?
  2. What is the impact of those problems on them?
  3. What is their ability to manage their problems by themselves and with the help of others?
  4. Taking into account investigations from questions 1-3 how would they suffer more harm than an ordinary person without access to a home? i.e. would they suffer more harm than you or I if they were to become homeless?
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1. Introduction

Duty of candour relates to an organisation being open and transparent with people who use its services and other relevant people (that is those who are acting lawfully on the person’s behalf) in relation to care and treatment. An organisation should be open and honest when things go wrong.

It applies to all NHS trusts, foundation trusts, special health authorities and all other service providers or registered managers.

Specific requirements must be followed in relation to an adult’s care and treatment, including:

  • informing people about an incident;
  • providing reasonable support;
  • providing truthful information;
  • giving an apology if procedures have not been followed or things go wrong.

2. Openness and Transparency

The organisation must promote a culture that encourages candour, openness and honesty at all levels. This is an integral part of a culture of safety that supports organisational and staff learning. This commitment to openness and transparency extends to all levels of the organisation, from senior and middle managers, care and support workers and ancillary staff, including temporary staff. These policies and procedures support a culture of openness and transparency, as they can be accessed by adults and their families as well as by staff.

Staff operating at all levels must understand their individual responsibilities in relation to the duty of candour, and are supported to be open and honest with adults and apologise when things go wrong. Staff should receive appropriate training, and there should be arrangements in place to support staff who are involved in a notifiable safety incident. In cases a manager is made aware that something untoward has happened, they should treat the allegation seriously, immediately consider whether this is a notifiable safety incident and take appropriate action (see Section 3, Notification Process following an Incident).

2.1 Bullying

The organisation should be committed to taking action to tackle bullying and harassment in relation to duty of candour, and must investigate any instances where a member of staff may have obstructed another in exercising their duty of candour. A possible breach of the professional duty of candour by staff who are professionally registered, including the obstruction of another in such a duty, may lead to an investigation, disciplinary action and referral to the Care Quality Commission and / or their professional body.

3. Notification Process following an Incident

When a notifiable safety incident has occurred, the adult and / or relevant person must be informed as soon as reasonably practicable after the incident has been identified.

The organisation should inform its regulator and / or commissioner of any unintended or unexpected incident that occurred in respect of an adult when providing regulated activity that, in the reasonable opinion of a health care professional:

  • appears to have resulted in:
    • the death of the adult, where the death relates directly to the incident rather than to the natural course of their illness or underlying condition (see Safeguarding Adult Reviews);
    • an impairment of the sensory, motor or intellectual functions of the adult which has lasted, or is likely to last, for a continuous period of at least 28 days;
    • changes to the structure of the adult’s body;
    • the adult experiencing prolonged pain or prolonged psychological harm; or
    • the shortening of the life expectancy of the adult; or
  • requires treatment by a health care professional in order to prevent:
    • the death of the adult; or
    • any injury to the adult which, if left untreated, would lead to one or more of the outcomes mentioned above.

Where the degree of harm to the adult is not yet clear but may fall into the above categories in future, the adult and / or relevant person must be informed of the notifiable safety incident. There must be appropriate arrangements in place to notify the adult who is affected by an incident if they are aged 16 and over and lack the mental capacity to make a decision about their care or treatment (see Mental Capacity chapter). A person acting lawfully on behalf of the adult must be notified as the relevant person where they are under 16 and lack the mental capacity to make a decision regarding their care or treatment. A person acting lawfully on behalf of the adult must be notified as the relevant person, upon the adult’s death.

Other than the situations outlined above, information should only be disclosed to family members or carers where the adult has given their consent. A step by step account of all relevant facts known about the incident at the time must be given, in person, by one or more member of staff including a service manager as relevant. This should include as much or as little information as the adult and / or relevant person wants to hear, be jargon free and explain any complicated terms. The account of the facts must be given in a manner that the adult and / or relevant person can understand. Staff should consider whether interpreters, advocates, or other communication aids should be used, while being conscious of any potential breaches of confidentiality in doing so.

Staff must also explain to the adult and / or relevant person what further enquiries they will make. One or member of staff should give a meaningful apology, which is an expression of sorrow or regret, in person, to the adult and / or relevant person. In making a decision about who is most appropriate to provide the notification and / or apology, the organisation should consider seniority, relationship to the adult, and experience and expertise in the type of notifiable incident that has occurred. Following the notification of the incident given face to face, the relevant person must receive written notification of the incident, even though enquiries may not yet be complete. This must contain all the information that was provided at the face-to face meeting, including an apology and as well as the results of any enquiries that have been made since. The outcomes or results of any further enquiries and investigations must also be provided in writing to the adult and / or relevant person through further written notifications, if they wish to receive them.

The organisaiton must make every reasonable attempt to contact the relevant person through all available means of communication. All attempts to contact the relevant person must be documented (see Section 5, Record Keeping). If the relevant person does not wish to communicate with the organisation or a senior manager, their wishes must be respected and a record of this must be kept. If the relevant person has died and there is nobody who can lawfully act on their behalf, a record of this should also be kept. The organisation is not required by regulation to inform an adult when a ‘near miss’ has occurred and the incident has resulted in no harm to that person.

4. Action following an Incident

The organisation must give the adult and / or relevant person all reasonable support necessary to help overcome the physical, psychological and emotional impact of the incident. This could include all or some of the following:

  • treating them with respect, consideration and empathy;
  • offering the option of direct emotional support during the notifications, for example from a family member, a friend, a care professional or a trained advocate;
  • offering help to understand what is being said, for example, through an interpreter, non-verbal communication aids, written information, Braille etc;
  • providing access to any necessary treatment and care to recover from or minimise the harm caused where appropriate;
  • providing the adult and / or relevant person with details of specialist independent sources of practical advice and support or emotional support / counselling;
  • providing the adult and / or relevant person with information about available impartial advocacy and support services, their local Healthwatch and other relevant support groups, for example Cruse Bereavement Care and Action against Medical Accidents (AvMA), to help them deal with the outcome of the incident;
  • arranging for care and treatment from another professional, team or provider if this is possible, if the adult and / or relevant person wishes;
  • providing support to access the organisation’s complaints procedure.

See also South Tyneside Multi Agency Information Sharing Agreement

5. Record Keeping

See also Case Recording.

The organisation must keep a record of the written notification, along with any enquiries and investigations and the outcome or results of the enquiries or investigations. Any correspondence from the adult and / or relevant person relating to the incident must be responded to in an appropriate manner and a record of communications should be kept.

6. Organisational Learning

The organisation should ensure a culture in which it learns from incidents at all levels in order to ensure the future protection and safety of adults who use its services.

7. Training and Support

See also Safeguarding Training for Staff and Volunteers

Staff should receive appropriate training and there should be arrangements in place to support staff who are involved in a notifiable safety incident.

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RELEVANT CHAPTER

Stage 1: Concerns

Safeguarding: What is it and Why does it Matter?

RELEVANT INFORMATION

Pressure ulcers: how to safeguard adults (Department of Health and Social Care)

Helping to Prevent Pressure Ulcers: A Quick Guide for Registered Managers of Care Homes (NICE)

April 2024– This section has been updated throughout to reflect the revised Department of Health and Social Pressure ulcers protocol and guidance. Information on the Pressure Ulcer Review Process (PURP) used by staff within the South Tyneside and Sunderland NHS Foundation Trust has also been added.

1. Introduction

In January 2024, the Department of Health and Social Care (DHSC) published an updated protocol on the process to be followed when it is identified that an adult has a pressure ulcer, including how to assess if a safeguarding concern should be raised with the local authority.

The protocol notes an increased concern about pressure ulcers in all settings, and a lack of clarity about when it is appropriate to raise a concern with the local authority adult safeguarding team, in relation to a section 42 safeguarding enquiry.

The protocol aims to promote awareness of pressure ulcers across the social care workforce, so that more can be done to prevent their occurrence and enable a speedy response. It makes clear that – in most cases – the appropriate response will be led by health practitioners, and not involve adult safeguarding processes. The protocol is accompanied by an adult safeguarding decisions guide which should be completed by a registered nurse. If responses to questions in the guide give a total score of more than 15, then concerns should be shared with the local authority adult safeguarding team.

2. What are Pressure Ulcers?

Pressure ulcers (also called pressure sores or bed sores) are an injury that break down the skin and underlying tissue. They are caused when an area of skin is placed under pressure. They usually form on bony parts of the body, such as the heels, elbows, hips and tailbone (coccyx, at the base of the spine).

Signs of a pressure ulcer include:

  • discoloured patches of skin that do not change colour when pressed – such patches are usually red on white skin, or purple or blue on black or brown skin;
  • a patch of skin that feels warm, spongy or hard;
  • pain or itchiness in the affected area of skin.

Pressure ulcers usually develop gradually but can sometimes appear over a few hours. They can become a blister or open wound. If left untreated, they can get worse and eventually reach deeper layers of skin, muscle and bone.

People are at more risk of developing pressure ulcers if they:

  • have problems moving / are not very mobile;
  • have had a pressure ulcer before;
  • have been seriously ill in intensive care or have recently had surgery;
  • are underweight.
  • have swollen, sweaty or broken skin.
  • have poor circulation or fragile skin.
  • have problems feeling sensation or pain.

Other issues include:

  • substandard care provided by staff;
  • poor communication between carers and nurses;
  • ineffective multi-disciplinary working;
  • lack of access to required resources such as equipment and low staffing numbers.

Pressure ulcers can also occur because of neglect. This may be the deliberate or unintentional failure of a carer or member of staff to provide appropriate and adequate care and support. This can include:

  • ignoring a person’s medical or physical care needs;
  • failing to provide access to appropriate healthcare and support services;
  • withholding essentials a person may need for good skin health, such as medication, adequate nutrition and regular changes of position.

3. Preventing Pressure Ulcers

Pressure ulcers cause distress to adults and their families, but most can be prevented. While treating and responding to pressure ulcers will mainly be health led, preventing pressure ulcers is the responsibility of everyone involved, as many of those who are at risk of pressure ulcers will be receiving services and support from staff working across the social care sector.

To prevent pressure ulcers, all health and social care practitioners involved in the planning, commissioning and delivering of health and social care to an adult, need to be able to spot the risks and take appropriate, speedy action.

Assessments of adults, including risk assessments, should look at the likelihood of pressure ulcers developing and describe actions that will be taken to prevent them. This applies to adults living at home as well in registered care home settings.

3.1 Providing information and advice

If the person who is at risk of pressure ulcers has mental capacity (see Mental Capacity chapter), they should be given advice and information about self-care and preventing skin damage. However, it is important to make sure the person:

  • has understood the advice;
  • can put the advice into practice;
  • has the necessary equipment and knows how to use it;
  • can understand what may happen if they do not follow advice.

If it appears that the adult is not looking after themselves or their environment, staff should ask their manager or safeguarding adults lead for advice (see also Self Neglect Guidance).

Family or friends carers or care workers should also be given training and information on how to prevent skin damage and pressure ulcers, and guidance on how to spot the signs that an ulcer may be developing.

4. Taking Action when a Pressure Ulcer is Identified

Where there is concern that a pressure ulcer has developed, an appropriate member of staff should explain this to the adult and their family members as appropriate and ask their views. Responses to pressure ulcers should always have the person at the centre and fully involve them (or their representative) and family.

Responding to pressure ulcers will mainly be an issue for health practitioners, rather than a safeguarding enquiry led by the local authority.  It is not appropriate or necessary for adults with pressure ulcers to be routinely referred to the local authority (see Section 4.2, When safeguarding concerns should be raised with the local authority).

Where there are concerns about the quality of a service and possible poor practice, these should usually be raised with the service provider in the first instance, then escalated to the local authority, Integrated Care Board or Care Quality Commission (CQC).

4.1 Initial steps

If there are concerns that an adult has a pressure ulcer, the member of staff involved should (in discussion with the adult and their family) refer them to appropriate healthcare services so they can access the treatment they require and action to prevent further damage to their skin.

A clinician, usually a nurse, will document how the skin damage developed. If the person has recently been transferred from another service, the organisation which identified concerns about the pressure ulcer should contact the previous care provider for information.

There should be a review within the organisation / service / provider, to identify if there are any lessons which could prevent the occurrence of pressure ulcers in the future. Very few cases will need a safeguarding concern to be raised with the local authority, most will not require such action (see Section 4.2 When safeguarding concerns should be raised with the local authority).

Where the pressure ulcer appears to be the result of unintentional neglect by an unpaid family or friend carer who is struggling to provide care, the most appropriate response will be to revise the package of care and ensure the carer has support and equipment to be able to care for the adult safely.  Conversations with carers about this can be difficult, especially where carers have been dedicated in providing care but were not given – or have forgotten or otherwise not followed – advice and support to prevent pressure ulcers.

4.2 When safeguarding concerns should be raised with the local authority

Most adults with pressure ulcers do not usually require a safeguarding referral / safeguarding processes as they require interventions and responses from health professionals.

The protocol requires that the Safeguarding Concern Assessment Guidance is used in cases of adults with ‘severe’ damage, to assess whether it may be appropriate for staff to also share their concerns with the local authority adult safeguarding team.

4.2.1 Defining Severe Damage

Pressure ulcers are given a category (or grade) from one to four to indicate the extent of the wound. For more information, see Categories of Pressure Ulcer (PDF, 1.22MB), with four being the most severe.

Pressures ulcers are classed as severe damage when:

  • there are multiple ulcers of category (or grade two)
  • there is a single case of category (or grade) three-four (or unstageable or deep tissue injury)

4.2.2 Action when there is severe damage

Within 48 hours of identifying a pressure ulcer which is classed as ‘severe damage’, the Safeguarding Concern Assessment Guidance should be completed by a registered nurse with experience in wound management. The nurse completing the assessment should not be directly involved with the care of the adult.

The safeguarding adult decision guide contains six questions which give an initial score. This can be used to help inform decision making about whether to escalate safeguarding concerns. The threshold for raising a concern with the local authority is a score of 15 or above – but the score should be used alongside professional judgement.

The six questions in the adult safeguarding decision guide are:

  1. Has the patient or service user’s skin deteriorated to either category 3, 4 or unstageable, or multiple sites of category 2 ulceration from healthy unbroken skin, since the last opportunity to assess or visit?
  2. Has there been a recent change, that is within days or hours, in their clinical condition that could have contributed to skin damage? For example, infection, pyrexia, anaemia, end of life care (skin changes at life end), critical illness.
  3. Was there a pressure ulcer risk assessment or reassessment with an appropriate pressure ulcer care plan in place, and was this documented in line with the organisation’s policy and guidance?
  4. Is there a concern that the pressure ulcer developed as a result of the informal carer wilfully ignoring or preventing access to care or services?
  5. Is the level of damage to skin inconsistent with the patient or service user’s risk status for pressure ulcer development? For example, low risk, category (or grade) 3 or 4 pressure ulcer.

Answer question 6a if the patient or service user has capacity to consent to every element of the care plan:

6a. Was the patient or service user able to follow the care plan having received clear information regarding the risks of not doing so?

Answer question 6b if the patient or service user has been assessed as not having mental capacity to consent to any or some of the care plan:

6b. Was appropriate care undertaken in the patient’s best interests, following the best interests checklist in the Mental Capacity Act Code of Practice? This should be supported by documentation, for example, capacity and best interest statements and record of care delivered.

A body map should be used to record skin damage. Photographs can also be taken, with consent from the adult or their representative. The photograph should only show the ulcer, not other uninvolved parts of their body; care and sensitivity must be taken to protect the adult when taking such images.

Please note: Staff working in South Tyneside and Sunderland NHS Foundation Trust (STSFT) use the Pressure Ulcer Review Process (PURP) which also assists in identification of whether a safeguarding referral for pressure damage is required.

4.2.3 Assessment score and next steps

If the decision guide score is 15 or higher (which is a concern for safeguarding), then the following action is required:

  • discuss with the person, family and / or carers that there are safeguarding concerns, explaining why and that a safeguarding enquiry has been raised;
  • refer to the local authority, with completed safeguarding pressure ulcer decision guide documentation, or own agency internal assessment tool outcome (for staff working in South Tyneside and Sunderland NHS Foundation Trust this could be Pressure Ulcer Review Process (PURP) documentation);
  • follow local pressure ulcer reporting and investigating processes;
  • record the decision in the person’s case records.

If the decision guide score is under 15, then the follow action is required:

  • discuss with the person, family and / or carers and explain reason why it is not being referred for a safeguarding enquiry;
  • explain why it does not meet criteria for raising a safeguarding concern with the local authority, but stress the actions which will be taken to treat the adult’s ulcer and prevent any further skin damage;
  • action any other recommendations identified and put preventative or management measures in place;
  • follow local pressure ulcer reporting and health investigation processes;
  • record the decision in the person’s case records.

Once a safeguarding adults concern is raised with the local authority, staff in the safeguarding adults team will decide whether a section 42 enquiry is required and inform the adult, family members, organisation / provider of the next steps (see Safeguarding Enquiries Process).

Appendix 1: Resources

Body map for Initial Recording

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1. Introduction

Local authorities and Integrated Care Boards (ICBs) have equal and joint duties to prepare Joint Strategic Needs Assessments (JSNAs) and Joint Local Health and Wellbeing Strategies (JLHWSs), through the health and wellbeing board.

The purpose of the JSNA and JLHWS is to identify local needs to inform strategies and services to improve the health and wellbeing of the local community and reduce inequalities for all ages.

2. Joint Strategic Needs Assessment

A JSNA is an assessment of the current and future health and social care needs of the local community. These are needs that could be met by the local system and its partners, for example the local authority, Integrated Care Board, voluntary sector or the NHS.

The JSNA is produced by the local health and wellbeing board, and is unique to the local area. The health and wellbeing board should also consider a wide range of factors that impact on their communities’ health and wellbeing, and local assets that can help to improve outcomes and reduce inequalities. JSNAs should include information and outcomes for adult safeguarding. Each local area is free to undertake the JSNA in a way best suited to its local circumstances; there is no template or format that must be used and no mandatory data set to be included.

Within South Tyneside the approach taken includes asset within any assessment carried out and is therefore referred to as the JSNAA. The process of developing the key documents focuses on specific themes or topics rather than providing one overall needs assessment for South Tyneside. This approach enables individuals to access the relevant information more easily and allows documents to be updated more frequently as well as hosted on the website with a range of links to other supporting documents.

A range of quantitative (numeric) and qualitative (non-numeric) evidence should be used in the JSNA. There are a number of data sources and tools that the health and wellbeing board may find useful for obtaining quantitative data. Qualitative information can be gathered in a variety of ways, including views collected by the local Healthwatch organisation or by local voluntary sector organisations, feedback given to local providers by service users, and views fed in as part of community participation within the JSNA and JLHWS process.

3. Joint Local Health and Wellbeing Strategy

The JLHWS should turn the JSNA findings into clear outcomes that the health and wellbeing board wants to achieve, which will inform local commissioning, and the development of locally led initiatives that meet the outcomes agreed and the needs identified.

The JLHWS is the strategy for meeting the needs identified in the JSNA. As with JSNAs, it is produced by the health and wellbeing board, is unique to each local area, and there is no prescribed format.

However, the board must have regard to the integrated care strategy when preparing their joint local health and wellbeing strategies, as well as having regard to the NHS priorities and the statutory guidance.

The JLHWS should explain what priorities the health and wellbeing board has set in order to tackle the needs identified in the JSNA.

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1. Introduction – Using Data to Improve Services

NHS Digital collect a range of data covering many aspects of adult health and social care. This includes data submitted by NHS trusts, local authorities, and providers.  Reports published by NHS Digital can be used to look at trends in adult social care and safeguarding adults activity at the national, regional and local level.

However, to measure the effectiveness of safeguarding adults practice locally, the Safeguarding Adults Board will also need to collect and analyse its own data. The Safeguarding Adult Board (SAB) is required under the Care Act 2014 to be able to share strategic information to improve local safeguarding practice.

Information which could be useful locally includes:

  • data on safeguarding notifications to increase the SAB’s understanding of how widespread abuse and neglect is and how this may change over time;
  • evidence of community awareness of adult abuse and neglect and how to respond.

The SAB annual report will also provide a summary of safeguarding adults activity in the local area and outline how it is meeting the aims of its business plan / strategic plan.

2. Safeguarding Adults Collection

Each year NHS Digital publishes the findings from data collected from local authorities under the Safeguarding Adults Collection (SAC).

The reports published provide details of safeguarding activity relating to adults aged 18 and over in England.

Data collected covers the following:

  • number of safeguarding concerns;
  • number of section 42 enquiries;
  • types of risk;
  • risk assessment and outcomes;
  • making safeguarding personal;
  • safeguarding adult reviews.

This data can be used by safeguarding adult partners to:

  • understand trends in safeguarding concerns raised and enquiries conducted;
  • analyse the profile of people involved in safeguarding enquiries, and the nature of the risk of abuse or neglect involved;
  • supplement local data collected in relation to safeguarding practice and outcomes.

For more information see NHS Digital.

3. Deprivation of Liberty Safeguards

NHS Digital also collects a statutory annual return for Deprivation of Liberty Safeguards (DoLs).

Data collected from local authorities covers the following:

  1. the number of DoLS application requests made;
  2. the number of authorisation requests granted;
  3. the number of authorisation requests not granted;
  4. time taken to process DoLS applications.

See also  Deprivation of Liberty Safeguards (DoLS), under the Mental Capacity Act 2005 .

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Multi-Agency Risk Panels or High Risk Panels are one type of multi-agency working on complex and high risk cases, often where agencies spend significant amounts of time responding to difficult, chaotic or problematic behaviour or lifestyles that place the person, and possibly others, at significant risk. Panels can be created with all necessary partners, both statutory and third party and will vary depending on local need of the case in question. Any situation calling for multi-agency action could be discussed at panel meetings. The panel will support agencies in their work to lower and manage risk for both individuals and the wider community.

Multi-Agency Risk Panels are based on the belief that shared decision making is the most effective, transparent and safe way to reach a decision, where there is challenge with the adult and professionals working with them to mitigate the risk; or where there is a high complex case and the risk needs to be escalated for consideration by such a panel. The purpose of the Panel is to agree a risk reduction plan that is owned and progressed by the most relevant agency with the support of necessary partners.

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This chapter provides information for practitioners about the Multi-Agency Risk Assessment Conference (MARAC) process which is a local multi-agency meeting aimed at protecting victims of domestic abuse through a range of multi-agency interventions.

RELEVANT CHAPTER

Types and Indicators of Abuse and Neglect

Domestic Abuse

RELEVANT INFORMATION AND FURTHER RESOURCES

SafeLives 

1. Introduction

A Multi-Agency Risk Assessment Conference (MARAC) is a local, multi-agency victim focused meeting where professionals meet to share information on high risk cases of domestic abuse.

Information about the risks faced by those victims, the actions needed to ensure safety, and the resources available locally are discussed, and used to create a risk management plan involving all agencies. The MARAC is part of a coordinated response to domestic abuse, incorporating representatives from statutory, community and voluntary agencies working with victims, adults experiencing or at risk of abuse or neglect, children and alleged perpetrators.

The MARAC aims to:

  • share information to increase the safety, health and wellbeing of victims / survivors and their children;
  • determine whether the alleged perpetrator poses a significant risk to any particular individual or to the general community;
  • construct and jointly implement a risk management plan that provides professional support to all those at risk and that reduces the risk of harm;
  • reduce repeat victimisation;
  • improve agency accountability; and
  • improve support for staff involved in high risk domestic abuse cases.

2. MARAC Attendance

The MARAC consists of a core group of professionals, representing the statutory and voluntary sectors. The meeting involves contribution and commitment from agencies including police, probation, children’s social care, adult social care (mental health, safeguarding adults), health, education, housing, substance misuse services, and specialist domestic abuse services. Other agencies can attend as required, when they have involvement in a case which is being discussed.

In South Tyneside, the MARAC meets fortnightly, and is chaired by a Detective Inspector from the Police’s PVP (Protecting Vulnerable People) Unit.

The victim does not attend the meeting, nor the perpetrator or Crown Prosecution Service.

3. Independent Domestic Violence Advisors

Each victim referred to the MARAC will be allocated an Independent Domestic Violence Advisor (IDVA). The IDVA is a trained specialist whose goal is the safety of domestic abuse victims, focusing on victims at high risk of harm.

The IDVA will attempt to make contact with the referrer and the victim following receipt of a MARAC referral. The IDVA’s job is to be a bridge between victims and the MARAC meeting. The IDVA will try and meet the victim beforehand, or at least talk to them on the phone, and explain how the meeting works, what it can do, and what the options are.

The IDVA will also ask if there is anything the victim would want to be discussed at the meeting.

4. Making a Referral to MARAC

Referrals can be made (and are encouraged) by any agency who identifies a victim of domestic abuse as being high risk. To make a referral into the MARAC, a Risk Checklist  needs to be completed (see Section 5 below).

A DASH Risk Checklist will enable the practitioner to determine the level of risk posed to a victim. Upon meeting the MARAC threshold for high risk, the local MARAC coordinator / administrator should be contacted regarding making a referral. The case will be submitted for the next available MARAC; however in some circumstances, an emergency MARAC meeting may be called.

5. DASH Checklist

See Resources for Identifying the Risk Victims Face, DASH Checklist (SafeLives)

The DASH Risk Checklist is for all professionals working with victims of domestic abuse, stalking and honour based abuse.

The purpose of the checklist is to give a consistent and simple to use tool to practitioners who work with victims of domestic abuse in order to help them identify those who are at high risk of harm and whose cases should be referred to a MARAC meeting in order to manage the risk. The primary audience is front line practitioners working with victims of domestic abuse who are represented at MARAC.  This will include both domestic abuse specialists, such as independent domestic violence advisors (IDVAs), and generic practitioners such as those working in a primary care health service or housing.  However, a range of agencies can use the checklist with their clients or service users.

Risk in domestic abuse situations is dynamic and can change very quickly.  Therefore, as well as being used when you receive an initial disclosure of domestic abuse, it may be appropriate to review the checklist with a client on more than one occasion.  It is designed to be used for those suffering current rather than historic domestic abuse and ideally would be used close in time to the last incident of abuse that somebody has suffered. Using an evidence based risk checklist tool increases the likelihood of the victim being responded to appropriately and therefore of addressing the risks they face.  The risk checklist provides practitioners with common criteria and a common language of risk. The risk checklisy should be introduced to the victim within the framework of an agency’s confidentiality policy, information sharing policy and protocols and its MARAC referral policies and protocols.

6. Assessing Risk

Practitioners must follow agreed protocols when referring to MARAC and children’s social care (see Local Contacts).  It is important for practitioners to use professional judgement in all cases.  The results from a checklist are not a definitive assessment of risk; they merely provide a structure to inform judgement and act as prompts to further questioning, analysis and risk management whether via a MARAC or in another way.

6.1 High risk victims

If the victim is assessed as high risk, a referral should be made to both the MARAC Coordinator and to the IDVA service. This, in itself, will not keep a victim safe and practitioners should consider what other actions are necessary including making a safeguarding referral where appropriate. Further information can be found in the South Tyneside Domestic Abuse Guide and Service Directory.

7. Interface with Safeguarding Adults

When deciding whether MARAC or safeguarding is the most appropriate process for a particular case, consideration should be given as to which process is most relevant in order to be able to resolve the issue. All involved professionals should discuss and agree the most appropriate process.

Referrals and involvement in both processes at the same time may result in confusion and duplication. Whichever process is followed, the main priority is always the safety and wellbeing of the adult (and any other adults at risk / children involved). Multi-agency safeguarding planning will be key in whatever process is used.

At MARAC meetings the adult will not be present (as may also be the case for safeguarding meetings); however either an IDVA or a victim support worker will be present to advocate on behalf of the adult.

Multi-Agency Public Protection Arrangements (MAPPA) may also need to be considered in relation to an offender (see Multi-Agency Public Protection Arrangements chapter).  Again, consideration needs to be given by all professionals as the most appropriate process.

When considering a referral to MARAC or adult safeguarding, professionals from any agency should adhere to these procedures and work to ensure the best interest of the adult.

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This chapter provides information for multi-agency practitioners about Multi-Agency Public Protection Arrangements (MAPPA) which are the statutory processes for managing violent and sexual offenders living in the community, with the aim of reducing offending and protecting the public.

RELEVANT CHAPTER

Multi-Agency Risk Assessment Panels

RELEVANT GUIDANCE

MAPPA Guidance (Ministry of Justice)

1. Introduction

The purpose of MAPPA is to help reduce the re-offending behaviour of sexual and violent offenders in order to protect the public, including previous victims, from serious harm. It should also ensure that comprehensive risk assessments are undertaken and robust risk-management plans put in place. MAPPA takes advantage of coordinated information-sharing across the agencies on each MAPPA offender, and ensures that appropriate resources are directed in a way which enhances public protection.

MAPPA is not a statutory body in itself but is a mechanism through which agencies can better discharge their statutory responsibilities and protect the public in a coordinated way.

It aims to do this by ensuring that all relevant agencies work together effectively to:

  • identify all relevant offenders complete comprehensive risk assessment that takes advantage of coordinated information sharing across the agencies; and
  • devise, implement and review robust risk management plans and focus the available resources to best protect the public from serious harm.

The NPS, police and prison service are responsible authorities required to ensure the effective management of offenders. However NHS, social services, education and housing all have a duty to cooperate under the Criminal Justice Act 2003.

2. Responsible Authorities and Duty to Cooperate Agencies

The Responsible Authority is the primary agency for MAPPA. This is the police, prison and probation service in each area, working together. The Responsible Authority has a duty to ensure that the risks posed by specified sexual and violent offenders are assessed and managed appropriately.

Other bodies have a duty to cooperate with the Responsible Authority in this task. These duty to cooperate agencies (DTC agencies) will need to work with the Responsible Authority on particular aspects of an offender’s life, for example education, employment, housing, social care. These agencies include:

  • adult and children’s social care services;
  • local education authorities;
  • youth offending teams;
  • National Health Service providers;
  • local housing authorities;
  • registered social landlords who accommodate MAPPA offenders;
  • Jobcentre Plus;
  • electronic monitoring providers;
  • UK Visas and Immigration.

3. Identification and Notification

The first stages of the process are to identify offenders who may be liable to management under MAPPA as a consequence of their caution or conviction and sentence. This responsibility falls to the agency that has the leading statutory responsibility for each offender. Offenders are placed into one of three MAPPA categories according to their offence and sentence:

  • category 1: registered sexual offenders;
  • category 2: violent and other sexual offenders (violent – 12 months or more sentence of imprisonment for violent offence, other sexual offenders and those subject to hospital orders with restrictions);
  • category 3: other dangerous offenders – a person who has been cautioned for or convicted of an offence which indicates that he or she is capable of causing serious harm and which requires multi-agency management. It could also include those offenders on a community order who are, therefore, under the supervision of the probation service.

4. Levels of Management

MAPPA offenders are managed at one of three levels according to the extent of agency involvement needed and the number of different agencies involved.

Level 1: ordinary agency management – ordinary agency management level 1 is where the risks posed by the offender can be managed by the agency responsible for the supervision or case management of the offender. The majority of offenders are managed at level 1. This involves the sharing of information but does not require multi-agency meetings.

Level 2: active multi-agency management – cases should be managed at level 2 where the offender:

  • is assessed as posing a high or very high risk of serious harm; or
  • the risk level is lower but the case requires the active involvement and co-ordination of interventions from other agencies to manage the presenting risks of serious harm; or
  • the case has been previously managed at level 3 but no longer meets the criteria for level 3; or
  • multi-agency management adds value to the lead agency’s management of the risk of serious harm posed;

Level 3: active enhanced multi-agency management – level 3 management should be used for cases that meet the criteria for level 2 but where it is determined that the management issues require senior representation from the Responsible Authority and DTC agencies. This may be when there is a perceived need to commit significant resources at short notice or where, although not assessed as high or very high risk of serious harm, there is a high likelihood of media scrutiny or public interest in the management of the case and there is a need to ensure that public confidence in the criminal justice system is maintained.

5. MAPPA Meetings

The vast majority of MAPPA offenders will be managed through the ordinary management of one agency, although this will usually involve the sharing of information with other relevant agencies.

The structural basis for the discussion of MAPPA offenders who need active interagency management, including their risk assessment and risk management, is the MAPP meeting.

The Responsible Authority agencies and the MAPPA Coordinator are permanent members of these meetings. The DTC agencies should be invited to attend for any offender in respect of whom they can provide additional support and management. The frequency of meetings depends on the level of management deemed appropriate for each offender.

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RELEVANT CHAPTERS

Modern Slavery

Interpreting, Signing and Communication Needs

Stage 1: Concerns

RELEVANT GUIDANCE AND INFORMATION

No Recourse to Public Funds Network

Assessing and Supporting Adults who have No Recourse to Public Funds (England) (NRPF Network)

Guidance for Adult Social Care (NRPF Network)

March 2022: This chapter has been reviewed throughout and extensively updated. New sections have been added on: Asylum Seekers and Modern Slavery

1. Definition and Eligibility

1.1 Definition of No Recourse to Public Funds

The term no recourse to public funds (NRPF) applies to people who are subject to immigration control in the UK and who do not have any entitlement to welfare benefits or public housing.

The definition of ‘subject to immigration control’ is set out in section 115 Immigration and Asylum Act 1999 (‘exclusion from benefits’), and includes people who:

  • require leave to enter or remain in the UK but do not have it (e.g. an illegal entrant, Appeal Rights Exhausted asylum seeker or visa overstayer);
  • have leave to enter or remain in the UK which is subject to a condition that they do not have recourse to public funds( e.g. a spouse of a settled person, a Tier 4 student and their dependents or those with leave to remain as a visitor or under ‘family or private life rules’); or
  • have leave to enter or remain in the UK given as a result of a maintenance undertaking (e.g. they are adult dependant relatives of people with settled status).

The statement ‘no public funds’ will be written on the person’s immigration documentation if they have immigration permission with NRPF.

People who have no recourse to public funds are not usually entitled to receive welfare benefits.

They also have no entitlement to local authority housing or assistance from the local authority in relation to homelessness.

However, there are several exceptions to the rules regarding public funds, which are set out in the Home Office Guidance on Public Funds. This means that a person who has leave to remain with NRPF may be able to claim certain benefits without this affecting their immigration status when they:

  • are a national of a country that has a reciprocal arrangement with the UK;
  • have an EEA national family member, including a British citizen;
  • make a joint claim for tax credits with a partner who has recourse to public funds; or
  • have indefinite leave to enter or remain as an adult dependent relative during the first five years they are in the UK (during which time they can claim non-means tested benefits).

1.2 Recourse to Public Funds

People with the following types of immigration status will have recourse to (be able to access) public funds:

  • indefinite leave to enter or remain or no time limit (apart from an adult dependent relative);
  • right of abode;
  • exempt from immigration control;
  • refugee status;
  • humanitarian protection;
  • have leave to remain granted under the family or private life rules where they are accepted by the Home Office as being destitute or at risk of imminent destitution;
  • discretionary leave to remain, for example:
    • leave granted to a person who has received a conclusive grounds decision that they are a victim of trafficking or modern day slavery;
    • destitution domestic violence concession;
  • unaccompanied asylum-seeking child leave.

See Who has NPRF? Assessing and Supporting Adults who have no Recourse to Public Funds (England) for further information

2. Asylum Seekers

When an asylum seeker or refused asylum seeker (asylum seeker) requests care and support from social care, a local authority will be able to refer such a person to the Home Office for asylum support.

In certain circumstances, destitute refused asylum seekers may be provided with support from the Home Office under section 4 of the Immigration and Asylum Act 1999. They need to show that they:

  • are taking all reasonable steps to leave the UK;
  • are unable to leave the UK due to physical impediment;
  • have no safe route of return;
  • have been granted leave to appeal in an application for judicial review concerning their asylum claim; or
  • require support to avoid a breach of their human rights, for example they have made further submissions for a fresh asylum claim.

The support provided comprises accommodation and subsistence, which is intended to cover the costs of food, clothing and toiletries, through a card that can be used in shops but not to withdraw cash. Subsistence support cannot be provided independently of accommodation.

The following organisations provide information and asylum support:
Home Office
Migrant Help (assistance with applications)
Asylum Support Appeals Project (assistance when support is refused)

3. Modern Slavery

See also Modern Slavery chapter.

Local authorities must consider and investigate when they suspect a person may be a victim of trafficking or modern slavery, or when a confirmed victim who has NRPF requests care and support or requires housing.

4. Human rights considerations

Whilst taking into account legal restrictions, local authorities cannot carry out their duties in any way that breaches a person’s human rights. In all situations, the local authority should provide support where necessary to avoid a breach of their human rights. The local authority should assess the person’s needs if there would be a breach of human rights if support is not provided.

In practice this means that local authorities must undertake a human rights assessment to consider whether, or to what extent, the circumstances are such that the bar on providing support or assistance under the Care Act should be lifted in order to avoid a breach of human rights.

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Ordinary Residence is used to decide which local authority is responsible for providing an adult with care and support. This chapter provides an overview for multi-agency practitioners.

RELEVANT CHAPTERS

Promoting Wellbeing

Preventing, Reducing or Delaying Needs

RELEVANT INFORMATION

Chapter 19, Ordinary Residence, Care and Support Statutory Guidance (Department of Health and Social Care)

See also Ordinary Residence Case Studies

1. Introduction

It is critical that local authorities understand which people they are responsible for, and that people themselves know who to contact when they need care and support. The local authority is only required to meet the needs of those who are ‘ordinarily resident’ in their area (or are present there but have no settled residence (see Section 5, Persons with no Settled Residence). Ordinary residence is crucial in deciding which local authority is required to meet the care and support needs of adults, and their carers. Whether the person is ordinarily resident in the area of the local authority is a key test in determining where responsibilities lie between local authorities for the funding and provision of care and support.

Ordinary residence is not a new concept; it has been used in care and support for many years. However, there will always be cases in which it is difficult to establish precisely where a person is ordinarily resident. The Care Act extends the principle of ‘deeming’ certain people to be ordinarily resident in a particular local authority’s area, when some types of accommodation are arranged for them in another area. Local authorities cannot escape the effect of the deeming provision where they are under a duty to provide or to arrange for the provision of services.

2. How does Ordinary Residence affect the Provision of Care and Support?

The test for ordinary residence, which determines which local authority would be responsible for meeting needs, applies differently in relation to adults with needs for care and support and carers. For adults with care and support needs, the local authority in which the adult is ordinarily resident will be responsible for meeting their eligible needs. For carers, however, the responsible local authority will be the one where the adult for whom they care is ordinarily resident.

Local authorities must determine whether an individual is ordinarily resident in their area following the needs or carer’s assessment, and after determining whether the person has eligible needs.

The determination of ordinary residence must not delay the process of meeting needs. In cases where ordinary residence is not certain, the local authority should meet the individual’s needs first, and then resolve the question of ordinary residence subsequently. This is particularly the case where there may be a dispute between two or more local authorities.

3. How to Determine Ordinary Residence

The local authority’s responsibility for meeting a person’s eligible needs is based on the concept of ordinary residence. There is, however, no definition of ordinary residence in the Care Act. Therefore, the term should be given its ordinary and natural meaning.

In most cases, establishing the person’s ordinary residence is a straightforward matter. However, this is not always the case. There will be circumstances in which ordinary residence is not clear cut, for example when people spend their time in more than one area, or move between areas. Where uncertainties arise, local authorities should always consider each case on its own merits.

Local authorities should in particular apply the principle that ordinary residence is the place the person has voluntarily adopted for a settled purpose, whether for a short or long duration. Ordinary residence can be acquired as soon as the person moves to an area, if their move is voluntary and for settled purposes, irrespective of whether they own, or have an interest in a property in another local authority area. There is no minimum period in which a person has to be living in a particular place for them to be considered ordinarily resident there, because it depends on the nature and quality of the connection with the new place.

For people who lack capacity to make decisions about their accommodation and for children transitioning into adult social care services, the judgment in the case of R (on the application of Cornwall Council) Secretary of State & Ors [2015] UKSC46 (Cornwall) is appropriate because a person’s lack of mental capacity may mean that they are not able to voluntarily adopt a particular place of residence.

4. Cases where a Person Lacks Capacity

See also Mental Capacity

All issues relating to mental capacity should be decided with reference to the Mental Capacity Act 2005 (MCA). Under this Act, it must be assumed that adults have capacity to make their own decisions, including decisions relating to their accommodation and care, unless it is established to the contrary.

The test for capacity is specific to each decision at the time it needs to be made, and a person may have capacity to make some decisions but not others. It is not necessary for a person to understand local authority funding arrangements to have capacity to decide where they want to live.

If it can be shown that a person lacks capacity to make a particular decision, the MCA makes clear how decisions should be made for that person. For example, if a person lacks capacity to decide where to live, a best interests decision about their accommodation should be made under the Act. Any act done, or decision made (which would include a decision relating to where a person without capacity should live), must be done or made in the best interests of the person who lacks capacity. The MCA sets out how to work out the best interests of a person who lacks capacity and provides a checklist of factors for this purpose.

5. Persons of No Settled Residence

Where doubts arise in respect of a person’s ordinary residence, it is usually possible for local authorities to decide that the person has resided in one place long enough, or has sufficiently firm intentions in relation to that place, to have acquired an ordinary residence there. Therefore, it should only be in rare circumstances that local authorities conclude that someone is of no settled residence. For example, if a person has clearly and intentionally left their previous residence and moved to stay elsewhere on a temporary basis during which time their circumstances change, a local authority may conclude the person to be of no settled residence.

Local authorities have a duty to meet the eligible needs of people if they are present in its area but of no settled residence. In this regard, people who have no settled residence, but are physically present in the local authority’s area, should be treated in the same way as those who are ordinarily resident.

A local authority may conclude that a person arriving from abroad is of no settled residence, including those people who are returning to England after a period of residing abroad and who have given up their previous home in this country. See Ordinary Residence Case Studies.

6. Ordinary Residence when Arranging Care and Support in another Area

There may be some cases where the local authority considers that the person’s care and support needs can only be met if they are living in a specified type of accommodation. This could be in a care home, or other kinds of premises as specified below. If the specified accommodation in which the care is provided is located in the area of another authority, it is important that there is no question as to which local authority is responsible for meeting the person’s needs.

The Care Act and associated regulations set out what should happen in these cases. The person placed ‘out of area’ is deemed to continue to be ordinarily resident in the area of the first authority, and does not acquire an ordinary residence in the ‘host’ or second authority. The local authority which arranges the care in the specified accommodation retains responsibility for meeting the person’s needs.

The regulations specify the types of accommodation to which this provision applies. It explicitly sets out three types of accommodation:

1) nursing homes/care homes: accommodation which includes either nursing care or personal care

2) supported living/extra care housing this is either:

  • specialist or adapted accommodation: this means accommodation which includes features that have been built in or changed to in order to meet the needs of adults with care and support needs. This may include safety systems and features which enable accessibility and navigation around the accommodation and minimise the risk of harm, as appropriate to the individual;
  • accommodation which is intended for occupation by adults with care and support needs, in which personal care is also available, usually from a different provider

3) shared lives schemes: accommodation which is provided together with care and support for an adult by a shared lives carer, approved by the scheme, in the shared lives carer’s home under the terms of an agreement between the adult, the carer and any local authority responsible for making the arrangement. The shared lives carer will normally be providing personal care but they will not need to provide it in every case.

There may be occasions where a provider chooses to change the type of care which it provides, for instance to de-register a property as a care home and to redesign the service as a supported living scheme. Where the person remains living at the same property, and their needs continue to be met by the new service, then ordinary residence should not be affected, and the duty to meet needs will remain with the first authority. This will occur even if the person temporarily moves to another address whilst any changes to the property occur.

7. NHS Accommodation

Where a person goes into hospital, or other NHS accommodation, there may be questions over where they are ordinarily resident, especially if they are subsequently discharged into a different local authority area. For this reason, the Care Act makes clear what should happen in these circumstances.

A person for whom NHS accommodation is provided is to be treated as being ordinarily resident in the local authority where they were ordinarily resident before the NHS accommodation was provided. This means that where a person, for example, goes into hospital, they are treated as ordinarily resident in the area where they were living before they went into hospital. This applies regardless of the length of stay in the hospital, and means that responsibility for the person’s care and support does not transfer to the area of the hospital, if this is different from the area in which the person was ordinarily resident previously.

If a person who is ordinarily resident in England goes into hospital in Scotland, Wales or Northern Ireland, their ordinary residence will remain in England (in the local authority in which they ordinarily resided before going into hospital) for the purposes of responsibility for the adult’s care and support.

8. Mental Health Aftercare

Under section 117 of the Mental Health Act 1983 (the 1983 Act), local authorities together with Integrated Care Boards have a joint duty to arrange the provision of mental health aftercare services for people who have been detained in hospital for treatment under certain sections of the 1983 Act. After-care services must have both the purposes of ‘meeting a need arising from or related to the person’s mental disorder’ and ‘reducing the risk of a deterioration of the person’s mental condition and, accordingly, reducing the risk of the person requiring admission to a hospital again for treatment for mental disorder.’ The range of services which can be provided is broad.

The duty on local authorities to commission or provide mental health after-care rests with the local authority for the area in which the person concerned was ordinarily resident immediately before they were detained under the 1983 Act, even if the person becomes ordinarily resident in another area after leaving hospital.

9. Other Common Situations

9.1 Temporary absences

Having established ordinary residence in a particular place, this should not be affected by the individual taking a temporary absence from the area. The courts have held that temporary or accidental absences, including for example holidays or hospital visits in another area, should not break the continuity of ordinary residence, and local authorities should take this into account.

The fact that the person may be temporarily away from the local authority in which they are ordinarily resident, does not preclude them from receiving any type of care and support from another local authority if they become in urgent need. Local authorities have powers to meet the needs of people who are known to be ordinarily resident in another area, at their discretion and subject to their informing the authority where the person is ordinarily resident.

9.2 People with more than one home

Although in general terms it may be possible for a person to have more than one ordinary residence (for example, a person who divides their time equally between two homes), this is not possible for the purposes of the Care Act. The purpose of the ordinary residence test in the Act is to determine which single local authority has responsibility for meeting a person’s eligible needs, and this purpose would be defeated if a person could have more than one ordinary residence.

If a person appears genuinely to divide their time equally between two homes, it would be necessary to establish (from all of the circumstances) to which of the two homes the person has the stronger link. Where this is the case, it would be the responsibility of the local authority in whose area the person is ordinarily resident, to provide or arrange care and support to meet the needs during the time the person is temporarily away at their second home.

Further scenarios which may occur are set out in Annex H, and may be used by local authorities to support cases where there may be uncertainty as to an individual’s ordinary residence.

9.3 People who arrange and fund their own care

People who self-fund and arrange their own care (self-funders) and who choose to move to another area and then find that their funds have depleted can apply to the local authority area that they have moved to in order to have their needs assessed. If it is decided that they have eligible needs for care and support, the person’s ordinary residence will be in the place where they moved to and not the first authority.

9.4. Resolving Ordinary Residence and Continuity of Care Disputes

In the majority of cases, determining ordinary residence should be straightforward. However, there will be occasions where a person’s residency status is more complicated to establish.

A question as to a person’s ordinary residence can only arise where two or more local authorities are in dispute about the place of ordinary residence of a person. In such a case, the authorities may apply for a determination to the Secretary of State or appointed person. Where the local authorities concerned are in agreement about a person’s ordinary residence, but the person is unhappy with the decision, the person would have to pursue this with the authorities concerned and could not apply to the Secretary of State or an appointed person for a determination.

9.5 Process for seeking a determination

There are regulations in place to resolve any dispute which arises in relation to a person’s ordinary residence. It is the responsibility of the lead local authority to make a request in writing to the Secretary of State or appointed person, together with a statement of facts and other documentation.

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1. Introduction

Data protection legislation should not be seen as an obstacle to sharing information, but as a framework of best practice which helps to ensure that when the local authority uses, records and shares information it does so safely and in a way which is transparent and in line with the law.

Partner agencies of the South Tyneside Safeguarding Adults Board collect, store, use and retain (for specified time periods) information about people with whom they work. This includes:

  • adults who use (or previously used) their services, including their families and any children;
  • staff; and
  • suppliers.

When processing data in this way, organisations must comply with the requirements of the Data Protection Act 2018 (DPA) and the UK General Data Protection Regulation (UK GDPR).

Organisations must also ensure through their procedures and working practices, that all employees, contractors, consultants, suppliers and partners who have access to any personal data held by or on behalf of the organisation are fully aware of and abide by their duties and responsibilities under data protection legislation. Any contracts with service providers must be clear about the different parties’ responsibilities for data processing and information sharing.

Personal information must be handled and dealt with in accordance with data protection legislation however it is collected, stored, recorded and used, and whether it be on paper, on computer or digital records or recorded in any other way.

Organisations may also be required to collect and use information in order to comply with the requirements of central government, such as in the case of a Safeguarding Adults Review or Care Quality Commission inspection.

2. Legislation

2.1 Data Protection Act 2018

The Data Protection Act 2018 (DPA)  aims to ensure that UK data protection legislation keeps pace with technological changes, and the impact these have had on the collection and use of personal data.

2.2 UK General Data Protection Regulation

The UK General Data Protection Regulation (UK GDPR) sets out the key principles, rights and obligations for processing personal data. For more information see, UK GDPR: Guidance and Resources, Information Commissioner’s Office.

The GDPR:

  • gives individuals greater control of their data by improving consent processes; and
  • introduced the ‘right to be forgotten’ which enables the data subject to have their data ‘forgotten’ in certain circumstances.

If staff receive a query about the collection or processing of personal data, they should contact their Information Governance team / Data Protection Lead for advice.

3. Principles of Data Protection: Article 5 DPA

Anyone processing personal data must comply with the principles laid down the DPA and UK GDPR. These are legally enforceable and require that when personal data is processed (see also Section 3.2 What is personal data under Article 4?) it must be:

  • lawful and fair and carried out in a transparent manner in relation to the data subject. (lawfulness, fairness and transparency principle);
  • specified, explicit and legitimate and not further processed for other purposes incompatible with those purposes (purpose limitation principle);
  • adequate, relevant and not excessive to what is necessary in relation to the purposes for which data is processed (the data minimisation principle);
  • accurate and kept up to date (the accuracy principle);
  • kept for no longer than is necessary for the purposes for which the personal data is processed (the storage limitation principle); and
  • stored in a way that ensures appropriate security including protection against unauthorised or unlawful processing and accidental loss, destruction or damage, using appropriate technical or organisational measures (the integrity and confidentiality principle and the accountability principle).

3.1 Handling personal data and or sensitive personal data

The DPA outlines conditions for the processing of personal data, and makes a distinction between personal data and sensitive personal data.

Personal data is is any information relating to a living person who can be identified or who is identifiable, directly from that information, or who can be indirectly identified from that information in combination with other information

3.2 What is Personal Data under Article 4 GDPR?

Personal data is:

  • any information relating to an identified or identifiable natural person such as:
    1. a name;
    2. an identification number;
    3. location data;
    4. an online identifier such as an IP address or cookies; or
    5. an email address.

3.3 Special Categories of Data (sensitive personal data): GDPR Article 9

Special category data is personal data that needs more protection because it is sensitive. It includes personal data which reveals:

  • racial or ethnic origin;
  • political opinion;
  • religious or other beliefs;
  • trade union membership;
  • physical or mental health or condition;
  • sexual life or sexual orientation.

3.4 Identifying a lawful basis for sharing information 

Article 6 of the UK GDPR providers practitioners with a number of lawful bases for sharing information. At least one of these must apply whenever personal data is processed.

Where practitioners need to process and share special category data (sensitive personal data), they need to identify both a lawful basis for processing under Article 6 of the UK GDPR and a special category condition for processing in compliance with Article 9 (see: Information Commissioner’s Office, Lawful basis for processing);

4. Data Protection Practice

The organisation must:

  • observe fully conditions regarding the fair collection and use of personal information;
  • meet its legal obligations to specify the purpose for which information is used;
  • collect and process appropriate information and only to the extent that it is needed to fulfil operational needs or to comply with any legal requirements;
  • ensure the quality of information used;
  • apply strict checks to determine the length of time information is held;
  • take appropriate technical and organisational security measures to safeguard personal information;
  • ensure that personal information is not transferred abroad without suitable safeguards;
  • ensure that the rights of people about whom the information is held can be fully exercised under data protection legislation. These include:
    • the right to be informed that processing is being undertaken;
    • the right of access to one’s personal information within the statutory timescale;
    • the right to prevent processing in certain circumstances;
    • the right to correct, rectify, block or erase information regarded as wrong information.

In addition, the organisation should ensure that:

  • there is someone with specific responsibility for data protection;
  • everyone managing and handling personal information understands that they are contractually responsible for following good data protection practice;
  • everyone managing and handling personal information is appropriately trained to do so;
  • everyone managing and handling personal information is appropriately supervised;
  • anyone wanting to make enquiries about handling personal information, whether a member of staff or a member of the public, knows what to do;
  • queries about handling personal information are promptly and courteously dealt with;
  • methods of handling personal information are regularly assessed and evaluated;
  • performance with handling personal information is regularly assessed and evaluated;
  • data sharing is carried out under a written agreement, setting out the scope and limits of the sharing. Any disclosure of personal data will be in compliance with approved procedures.

All employees should be aware of their organisation’s data protection policy and of their duties and responsibilities under the DPA.

All managers and staff will take steps to ensure that personal data is kept secure at all times against unauthorised or unlawful loss or disclosure and in particular will ensure that:

  • paper files and other records or documents containing personal / sensitive data are kept in a secure environment;
  • personal data held on computers and computer systems is protected by the use of secure passwords, which where possible have forced changes periodically;
  • passwords must not be easily compromised and must not be shared with others;
  • personal data must only be accessible to team members with appropriate access levels;
  • data in all forms must be disposed of by secure means in accordance with local policies.

All contractors, consultants, suppliers and partners must:

  • ensure that they and all of their staff who have access to personal data held or processed for or on behalf of the organisation, are aware of this policy and are fully trained in and are aware of their duties and responsibilities under data protection legislation. Any breach of any provision of the legislation will be deemed as being a breach of any contract between the organisation and that individual, partner or firm (see Report a Breach, Information Commissioner’s Office);
  • allow data protection audits by the organisation of data held on its behalf (if requested);
  • indemnify the organisation against any prosecutions, claims, proceedings, actions or payments of compensation or damages, without limitation.

All contractors and suppliers who use personal information supplied by the organisation will be required to confirm that they abide by the requirements of data protection legislation in relation to such information supplied by the organisation.

The organisation must also:

  • ensure data subjects are given greater control of their data by improving consent processes. Consent must be freely given, specific, informed and give a clear indication of their wishes. This must be provided by a statement or clear affirmative action, signifying the individual’s agreement to the processing of their personal data;
  • ensure that data subjects have the ‘right to be forgotten’ in certain circumstances;
  • keep a record of data operations (mapping data flow within the organisation) and activities and assess if it has the necessary data processing agreements in place, and take action to remedy if not;
  • carry out data protection impact assessments (DPIAs) on its products and systems;
  • designate a data protection officer (DPO);
  • review processes for the collection of personal data;
  • be aware of the duty to notify the Information Commissioner’s Office (ICO) of a data breach (the relevant supervisory authority);
  • ensure ‘privacy by design’ and ‘privacy by default’ in new products (such as a case new recording system) and assess whether existing products used by the organisation meets the new data protection standards and take action accordingly to ensure compliance.

5. Redaction of Third Party Data

Before sharing information, personal data relating to third parties must be redacted (removed) in order to protect their privacy. For example, where case records include references to other people, such as the adult’s family and friends, it is likely some of this information will need to be withheld (redacted) before the record can be shared.

Under the Data Protection Act, it is for each organisation to weigh up how ‘reasonable’ it is to share another person’s information in each case (for example it may be reasonable to share information about another family members’ health condition if is likely to be hereditary). The Act is clear however that any person who appears in records because they were employed to provide care or received payment for providing a service, or acted in an official capacity, should not be treated as ‘third party’. This means that the names and information of social workers and other professionals should not be redacted from case records.

6. Rights of the Data Subject

Any person whose information is being processed has the following rights:

  • to be informed of data processing (for example a privacy notice);
  • to be able to access information free of charge (also known as a subject access request) – there is a one month time limit for an organisation to respond to any such request;
  • to have inaccuracies corrected;
  • to have information erased (although this is not an absolute right);
  • to restrict processing;
  • to have data portability;
  • intervention in respect of automated decision making;
  • to be able to withdraw consent;
  • to complain to the Information Commissioner’s Office (ICO).

6.1 Right to be informed (Section 44 DPA)

A person whose information is being processed should have access to a privacy notice, setting out:

  • lawful basis for processing;
  • contact details for the Data Protection Officer (DPO);
  • what information will be processed;
  • who it will be shared with and why;
  • how long it will be held;
  • details of rights;
  • how to complain.

6.2 Rectification (Section 46 DPA)

A person whose information is being processed has the following rights:

  • to rectify or correct inaccurate information;
  • if information is incomplete it must be completed;
  • rectification or correction can be achieved by the provision of a supplementary statement;
  • where the rectification is of information maintained for the purposes of evidence, instead if rectifying, the processing should be restricted;
  • be informed in writing if request has been granted and if not the reasons for this.

7. Action if there is a Data Breach

A breach of data security can be either accidental, deliberate or unlawful and can involve:

  1. destruction;
  2. loss;
  3. alteration;
  4. unauthorised disclosure;
  5. unauthorised access.

A breach covers accidental and deliberate causes and is more than just losing personal data.

7.1 Examples of data breaches

These are commonly occurring breaches:

  • access by an unauthorised party, including a third party;
  • deliberate or accidental action (or inaction) by a controller or processor;
  • sending personal data to an incorrect recipient;
  • computing devices containing personal data being lost or stolen;
  • alteration of personal data without permission; and
  • loss of availability of personal data.

7.2 What constitutes a serious data breach?

A serious data breach:

  • is where it is likely to result in a risk to the rights and freedoms of individuals. If unaddressed such a breach is likely to have a significant detrimental effect on individuals – for example, result in discrimination, damage to reputation, risk of physical harm, financial loss, loss of confidentiality or any other significant economic or social disadvantage;
  • must be assessed on a case by case basis;
  • must consider these factors: detriment / nature of data / volume (detriment includes emotional distress as well as both physical and financial damage).

All serious data breaches must be reported to the ICO within 72 hours of becoming aware of the breach. See ICO for further information.

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