1. home and garden

THE CARE ACT
2014: An
Essential Guide
for the Social
Housing Provider
Sian Davies, Peggy Etiebet &
Zoë Whittington
Cornerstone Barristers
Introduction: the Care Act 2014 and the housing provider
What is the Care Act 2014?
1.
The Care Act 2014 received royal assent in May 2014 and the majority of the
provisions will come into force on 1 April 2015. The Act overhauls existing adult social
care law and policy, transforming some areas and codifying others. It repeals the main
social care statutes (as they apply to adults) and replaces them with one single piece of
legislation intended to cover the full ‘care and support’ process for adults (including
carers), from prevention through to assessment and the provision of services.
2.
The Act is largely born out of the Law Commission’s recommendations on Adult Social
Care (published on 11 May 2011) and the aim was to consolidate and update the
existing law as well as to introduce some reform. Although it was intended to simplify
matters by having one single Act, much of the detail is in fact provided in secondary
legislation (by way of Regulations) and also in the Statutory Guidance (which was
issued by the Department of Health in June 2014 and is available at:
https://www.gov.uk/government/publications/care-act-2014-statutory-guidance-forimplementation). All of those sources therefore have to be read in conjunction with
each other in order to fully understand what is required. The notes for each topic
covered by this seminar clearly identify which statutory provisions and parts of the
Guidance are relevant to that particular topic (hopefully saving you from having to
trawl through the 200 page Act and 500 page Guidance!).
Why is the Care Act 2014 relevant to housing providers?
3.
It is Part 1 of the Care Act 2014 which deals with care and support and is relevant to
housing providers, including local authorities but also extending more broadly to other
providers such as Housing Associations. The duties in the Care Act 2014 are largely
duties of the local authority but some of those duties are likely to indirectly impact on
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other housing providers (for reasons which will be considered during this seminar).
There are also some duties owed specifically by all housing providers (see the duty of
co-operation below).
4.
The Care Act 2014 is significant in bringing housing into the picture of adult social care
(or ‘care and support’ as it is now termed under the Act). It has long been known that
housing plays an important role in the health and well-being of individuals and, in
practice, there has been recognition of the interplay between social care and housing
for some time (e.g. increased emphasis on independent living in the past decade or so
has meant as significant increase in joint working between the two areas as more
people move to supported living placements or sheltered accommodation or seek
adaptations to their homes so that they can remain there). Housing has not, however,
previously featured particularly strongly in the social care legislation itself.
5.
The Care Act 2014 changes that. The Act expressly recognises the importance of
housing
for
people’s
health
and
well-being
through
the
inclusion
of
housing/accommodation in some of the key definitions in the Act. Specifically, suitable
accommodation forms part of the definition of ‘well-being’ (the guiding principle which
underpins the Act, s.1) and housing is expressly stipulated to be ‘a health-related
service’ for the purposes of the duty to promote an integrated care and support and
health service (s.3).
Further - and perhaps the issue which is of most practical
relevance to housing providers – is the inclusion of housing and private registered
providers of social housing in the co-operation provisions (sections 6 and 7). There are
also extensive references to housing throughout the statutory guidance with housing
and housing support services often being used in examples of how the Act may be
implemented.
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6. Other key concepts and practices in the Act that are relevant to housing and which
will be discussed in this seminar are: (i) the emphasis on prevention and early
intervention (in both the Act itself and the Guidance) and the, potentially significant,
role which housing providers may play in this; and (ii) safeguarding of vulnerable
adults (something which providers of social housing will already be well aware of and
quite possibly dealing with on a very regular basis).
None of this, however, alters
any of the existing legal duties which housing departments of local authorities
already owe under housing legislation (specifically, the Housing Act 1996) and this is
dealt with by inclusion of ‘the exception for housing’ in section 23 of the Care Act
2014 which will also be briefly considered in this seminar.
7. It is not yet known the extent to which this increased recognition of housing within
the care and support legislation will ultimately be born out in practice. However,
those working in social housing (whether within local authorities or other providers)
do need to be aware of the Care Act 2014 and the provisions that are relevant) to
housing so that they know where they do have duties and can be prepared for the
potential changes in the expectations of what their role is.
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Well-being and the importance of ‘suitable living accommodation’
Relevant Statutory Provisions:

Section 1 Care Act 2014
Relevant Guidance:

Chapter 1 Statutory Guidance
Introduction
1. Section 1 of the Care Act 2014 creates a new statutory duty for local authorities to
promote the well-being of individuals. The general duty is owed to individuals (both
adults who may need care and support and carers). It is the duty of local authorities
when carrying out any of their functions under Part 1 of the Act (i.e. care and support
functions, sections 1 to 80). It is not therefore likely to be a direct duty on a housing
provider (although there is an interesting question as to whether the statutory provisions
might permit, for example, local authority housing officers to conduct some, basic, needs
assessments in which case the duty would be directly relevant to those housing officer –
see further below).
2. The well-being provision is a guiding principle underpinning the way in which local
authorities should perform their care and support functions and setting the tone for the
Act. In the same way that Mental Capacity Act 2005 has a set of core principles
underpinning it; the Care Act 2014 has been drafted so that core values are intended to
permeate the specific duties and powers. The inclusion of ‘suitability of accommodation
within this guiding, or core, principle of the Act therefore emphasises the important role
which appropriate housing can (and is expected to) play in care and support.
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What is ‘well-being’?
3. Section 1(2) sets out nine aspects of well-being, as follows:
a. personal dignity (including treatment of the individual with respect);
b. physical and mental health and emotional well-being;
c. protection from abuse and neglect;
d. control over day-to-day life (including over care and support, or support,
provided to the individual and the way in which it is provided);
e. participation in work, education, training or recreation;
f. social and economic well-being;
g.
domestic, family and personal relationships;
h. suitability of living accommodation;
i.
“the individual’s contribution to society”
4. For housing providers the important element is, of course, the ‘suitability of living
accommodation’ (i.e. housing). There is no further definition of what is meant by
‘suitability of living accommodation’. It might cover a whole range of housing issues,
including for example:
i.
General standard of living accommodation (e.g. a damp property may
exacerbate health issues which in turn creates more care and support needs).
ii.
Adaptations to a property to provide access or so that the property is safe.
iii.
The nature of the property (e.g. a ground floor flat for a person who has
mobility issues).
iv.
The housing related support services that are available (e.g. in supported or
sheltered accommodation).
5. Additionally, although it has not been included within the definition of well-being in
s.1 (2), the Statutory Guidance is clear that the concept of ‘independent living’ is part
of well-being. The Guidance states at 1.18 - 1.19:
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“1.18. Although not mentioned specifically in the way that “wellbeing” is
defined, the concept of “independent living” is a core part of the wellbeing
principle. Section 1 of the Care Act includes matters such as individual’s
control of their day-to-day life, suitability of living accommodation,
contribution to society – and crucially, requires local authorities to consider
each person’s views, wishes, feelings and beliefs”.
1.19 The wellbeing principle is intended to cover the key components of
independent living, as expressed in the UN Convention on the Rights of People
with Disabilities (in particular, Article 19 of the Convention). Supporting people
to live as independently as possible, for as long as possible, is a guiding
principle of the Care Act. The language used in the Act is intended to be
clearer, and focus on the outcomes that truly matter to people, rather than
using the relatively abstract term “independent living”.[emphasis added]
How does the local authority ‘promote’ well-being?
6. The Statutory Guidance states that promoting wellbeing “involves actively seeking
improvements in the aspects of wellbeing set out [in s.1] when carrying out a care and
support function in relation to an individual at any stage of the process…” [emphasis
added]. It seems that local authorities will therefore have to actively seek to improve,
amongst other things, the suitability of people’s living accommodation when they are
exercising functions such as carrying out needs assessments or reviewing a care and
support plan.
7. Whilst it has long been the case that individual’s housing needs will often be considered
as part of an assessment, there has to date been no duty to promote or actively seek to
‘improve’ it and it may well only have been expressly considered if there was a specific
problem raised. Although the local authority does not have to focus on every aspect of
well-being to the same degree, the fact that it is expressly included as one of the aspects
means that it must be considered at least to some extent and could potentially mean an
increase in housing needs being considered in assessment and care planning.
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Furthermore, it is not just in those stages of the process that it will be relevant but for all
care and support functions in relation to an individual so including, for example, when
providing information and advice to individuals.
What does this mean for housing providers?
8. It remains to be seen what direct impact, if any, this will have on housing providers.
Clearly, it is recognition of the important part housing plays in people's health and
welfare - something long recognised in practice but which has not previously had
significant recognition in legislation. Whether or not though there is a practical impact is
not certain.
9. It might potentially increase the express consideration of housing (e.g. in needs
assessments conducted by social care professionals) and reinforce the duties to
cooperate (e.g. between adult social care and housing departments within a local
authority and between local authorities and other housing providers). Those factors may
in turn lead to an increase in the types of requests made by local authority social care
teams to housing providers (whether the local authority or other providers) for
assistance with improvements (e.g. transfers to other types of property on the basis of
care and support needs, adaptations to be made/facilitated/agreed to, disrepair to be
remedied). There could also be an increase in the numbers of people being sign-posted
to housing providers by care and support teams in the exercise of their information and
advice function or following a needs assessment where they are not eligible for services.
10. Another possible impact is that the increased emphasis on housing, as forming part of
the core principle for care and support, will lead to change in thinking about the role of
housing professionals and whether there is possible scope for them to carry out broader
functions due to the direct contact they have with individuals who may be in need of
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care and support or who may develop needs in the future. This has relevance when it
comes to prevention and early intervention (see below). Another possible example of
this – as mentioned briefly above – is whether the Act might allow for housing
professionals to carry out basic needs assessments. The Care and Support (Assessment)
Regulations 2014 (SI No. 2827) state that:
“A local authority must ensure that any person (other than in the case of a supported
self-assessment, the individual to whom it relates) carrying out an assessment—
(a) has the skills, knowledge and competence to carry out the assessment in
question; and
(b) is appropriately trained.”
There is seemingly then no requirement that the assessor has a specific qualification (e.g.
registered social worker), although they must have the requisite skills, knowledge and
competence and be ‘appropriately trained’. It is left open as to what precisely that means
and certainly paragraph 6.7 of the Statutory Guidance suggest that it does not have to be
qualified social workers or occupational therapists that assess, by stating that those
professionals “may be involved in complex assessments” [emphasis added] and implying
that other more basic assessments might be carried out by someone else. The Guidance
does not explain who else might conduct the assessments and although the primary
intention may be that it would be by other (perhaps less qualified) social care
professionals, there is a question as to whether professionals in other areas, for example
housing officers, might be able to carry out assessments in more basic cases providing
they have had proper training.
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Prevention and early intervention: the role of the housing provider
Relevant Statutory Provisions:

Section 2 Care Act 2014
Relevant Guidance:

Chapter 2 Statutory Guidance
Introduction
1. Section 2 of the Act places a duty on local authorities to provide or arrange services that
reduce needs for support among people and their carers in the local area, and
contributes towards preventing or delaying the development of such needs .
2. This works alongside the strategic duty to identify service users in the authority’s area
and carers in its area, irrespective of their need for services. By knowing who is in your
area, you can target prevention services.
3. The duty is on ‘a local authority’ and is not limited to circumstances where the authority
is exercising other functions under the Act (as is the case for the duty to promote wellbeing). It is therefore likely to be applicable more broadly than some of the other duties
and to engage not only adult social care departments within local authorities but other
departments including, in particular, housing. It is a duty which those in local authority
housing departments and those advising them therefore need to be aware of.
What are preventative services?
4. According to the Guidance, preventive services should operate at three levels:
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
primary prevention to stop care and support needs from developing among those
who do not have them, for example through health promotion or action to
reduce isolation (example: funding a health information campaign, or a charity
which promotes social interaction among the elderly or disabled (see Guidance at
2.6));

secondary prevention, for people at increased risk of developing needs, which
could involve housing adaptations or short term provision of telecare services
that prevent deterioration (see Guidance at 2.7 – 2.8)

tertiary prevention for people with established needs to help improve
independence, for example through reablement (i.e. individualised prevention
services) (see Guidance at 2.9 – 2.11 which refers to, “…supporting people to
regain skills and manage or reduce need where possible”. It is not a one off
activity, and may include services provided to carers with a view to sustaining the
caring role).
How does the local authority fulfil the duty?
5. The duty is for the local authority to provide services, facilities or resources or take other
steps “which it considers” will reduce or prevent or delay development of needs in its
area. The use of the words “which it considers” demonstrate that the local authority
has a discretion as to what measures it takes to comply with this duty. That discretion
will obviously have to be exercised in accordance with public law principle of decision
making and according to the Statutory Guidance at 2.23; local authorities “should
develop a clear, local approach to prevention which sets out how they plan to fulfil this
responsibility”.
The suggestion is therefore that there needs to be some form of
policy/plan in place. This is where housing comes in. It is expressly pointed out in the
Guidance that the responsibility for this local prevention applies more broadly than just
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to adult social care teams and should include wider involvement of other relevant
services, including for example local authority housing services.
6. Specific reference is also made, at 2.24 of the Guidance, to the possibility of preventative
support being provided by external organisations (other than the local authority) – for
example, by specialist housing providers (e.g. Housing Associations, charities providing
supported accommodation).
7. Prevention/early intervention relevant to housing might include, for example:
a. Provision of information and advice about housing options (e.g. for sheltered or
supported accommodation)
b. Tenancy support
c. Adaptations to housing to improve accessibility
d. Housing related support to assist people gain or regain independent living skills.
8. In performing the s.2(1) duty, the LA must “have regard to the importance of”:
a. Identifying services, facilities & resources already available in its area & extent to
which could involve or make use of them;
b. Identifying adults in its area with care & support needs that are not being met;
c. Identifying carers in its area with needs for support that not being met
9. Front line housing staff are well placed to assist with these issues. In particular, they may
be able to identify adults (and possibly also carers) who have needs or are at risk of
developing needs and may do so at an earlier stage than they would otherwise come into
contact with services because the housing staff are having the most regular contact with
the individuals. Housing providers also may have support services in place already which
can potentially be identified as preventatives resources and made use of.
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10. Housing provider (both local authority and other providers) are therefore likely to be
one of the key players in local prevention planning.
Areas of legal complexity
Meaning of ‘have regard to’
11. The duty in s.2 (2) (which is on the local authority as a whole and thus relevant to local
authority housing professionals) is a due to “have regard to”. What does this mean? Is it
the same as the “due regard” obligation under the Equality Act 2010?
12. The courts have considered the Equality Act duty in various cases:
In R (D) v Worcestershire County Council [2013] EWHC 2490 (Admin) Mr Justice
Hickinbottom provided a useful summary of the relevant case law:
i.
Section 149(1) sets out a number of statutory goals, e.g. the elimination of
discrimination and the advancement of equality of opportunity. Section
149(3) sets out sub-goals in respect of the goal of advancement of equality of
opportunity, e.g. the removal or minimisation of disadvantages suffered and
the taking of steps to meet the needs of a relevant person. However, the
provisions do not impose a duty on an authority to take any particular steps
or to achieve any particular result or goal; nor, reciprocally, do they give direct
rights to an individual with a protected characteristic. An authority merely has
a duty to have due regard to the need to achieve the statutory goals.
ii.
"Due regard" is merely proper or appropriate regard in all the circumstances
(R (Baker) v Secretary of State for Communities and Local Government [2008]
EWCA Civ 141 at [31]).
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iii.
Determining whether the decision-maker has had due regard to the relevant
statutory need or goal is an exercise (a) which is fact-sensitive, being
dependent upon all the circumstances of the particular case (R (Harris) v
London Borough of Haringey [2010] EWCA Civ 703 at [40], and R (Bailey) v
London Borough of Brent [2011] EWCA Civ 1586 at [75] and [83]); (b) which
looks at substance, not form (R (Domb) v London Borough of Hammersmith &
Fulham [2009] EWCA Civ 941); (c) for which a mere general awareness of the
duty is insufficient: it requires "a conscious directing of the mind to the
obligations" (R (Meany) v Harlow District Council [2009] EWHC 559 (Admin) at
[74] per Davis J (as he then was), approved in Bailey); (d) which requires
consideration of specific goals in play and an analysis of the relevant material
with those goals in mind (Harris at [40]); (e) which requires "rigour and an
open mind" (R (Brown) v Secretary of State for Work and Pensions [2008]
EWHC 3158 (Admin)) at [92]); and (e) which must be performed before or at
the time the particular policy is considered, it being "an essential preliminary"
to any important policy decision not a "rearguard action following a
concluded decision" (R (BAPIO Action Ltd) v Secretary of State for the Home
Department [2007] EWCA Civ 1139).
13. Proper or appropriate regard in all the circumstances is likely also to be the benchmark
for the purposes of s.1 Care Act 2014. It is difficult to see how anything less than
appropriate regard could be lawful irrespective of inclusion of the word “due” although it
may be arguable that the EA 2010 obligation is more onerous on account of the different
wording.
14. It has been held in Pieretti v LB Enfield [2010] EWCA Civ 1104 that the Housing Act 1996
duty to make inquiries includes an obligation to consider what steps are necessary in
order to enable the decision maker to satisfy himself that the due regard obligation has
been complied with: in other words, the substantive duty to have regard may include a
procedural duty to make inquiries so that sufficient information is before the decision
maker. That may extend to the inquiries required of a local authority in the course of a
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community care assessment. In summary, the assessment must enable the decision
maker to be aware of the matters to which the authority is obliged to have regard.
Distinction between prevention and needs-based service
15. Other areas of legal complexity would appear to be around what is prevention and what
is simply a needs-based service (so, for example, the Guidance refers to short term
telecare services as a secondary prevention method, although telecare is generally a
means of summoning after the event help when needed, and in itself seems unlikely to
prevent deterioration though it may be relevant to preventing e.g. a need for residential
care arising). The Guidance seems somewhat confused as to the distinction between
identifying needs and the identification of the means of meeting needs. That distinction
is already, and will continue to be, of considerable importance in terms of duty to
provide services.
Resources
16. There is also plainly a resource-related tension: in circumstances of unlimited resources,
clearly many prevention methods at macro and micro level would be desirable but given
resource constraints, what view will the courts take of local authority decisions that
scarce
resources
prevent
prevention
methods
from
being
implemented?
15
Housing as part of an integrated care, support and health service
Relevant Statutory Provisions:

Section 3 Care Act 2014
Relevant Guidance:

Chapter 15 Statutory Guidance
Introduction
1. Section 3 of the Care Act 2014 imposes a duty on local authorities to carry out their care
and support responsibilities (under Part 1 of the Act) with the aim of joining-up the
services provided or other actions taken with those provided by the NHS and other
‘health-related services’.
2. For the purposes of this duty, it is expressly stated in the Act that housing is a ‘healthrelated provision’ (s.3(5)) and therefore the duty, in so far as it is relevant to housing
providers, is to integrate care and support with housing (as a health-related service).
When does the duty apply?
3. The duty applies where the local authority considers that the integration of services will:
a. promote the wellbeing of adults with care and support needs or of carers in its
area;
b. contribute to the prevention or delay of the development of needs of people; or
c. improve the quality of care and support in the local authority’s area, including the
outcomes that are achieved for local people.
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What does this mean for housing providers?
4. As with other aspects of the Act (e.g. prevention services and co-operation duties) this
provision is focused on joined up working across the different but linked services of care
and support and health (including housing). It is further recognition of the role which
housing has to play in the health and well-being of individuals and the need for care and
support services to work with housing both to help prevent and reduce needs and to
meet needs.
5. The Statutory Guidance envisages housing as an important factor in this promotion of
integration, relying heavily on housing examples as to how local authorities can meet this
duty. At 15.7 the Guidance gives the following examples of different mechanisms
through which the local authority can promote integration at different stages of its
various functions:
a. Planning – A local authority may use information from the local Joint Strategic
Needs Assessment to consider the wider need of that local population in relation
to housing; reflecting the needs of older and vulnerable residents within the local
authority’s development plans with reference to local requirements for inclusive
mainstream housing and specialist accommodation and/or housing services.
b. Commissioning – A local authority may wish to have housing represented at the
Health and Wellbeing Board/Clinical Commissioning Groups (CCGs) making a
visible and effective link between preventative spend (including housing related)
and preventing acute/crisis interventions. It is suggested that this can be done,
for example, via a jointly commissioned advice service covering both healthcare
and housing or via housing-related support as preventative measures.
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c. Assessment and information and advice – This might be done by integrating a
needs assessment with information and advice about housing options or
adaptations to the home. It might also be appropriate in some cases for housing
professionals to contribute to a needs assessment or provide information
because, for example, they know the person best or have a good relationship
with them.
d. Delivery of provision of care and support – There may be an integrated
assessment of the home (suitability, access, safety etc.) as part of other
assessments and it may be that a housing provider (e.g, a specialist housing
association) provides a support service which forms part of a jointly agreed
support plan (between care and support and housing).
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Housing Providers and Co-operation under the Care Act 2014
Relevant Statutory Provisions:

Sections 3, 6 and 7 Care Act 2014
Relevant Guidance:

Chapter 15 Statutory Guidance
Key Case-Law:



Northavon DC v Smith [1994] 2 A.C. 402
Worcestershire CC v J [2014] Civ 1518
R(T) v Haringey LBC [2005] EWHC 2235
Introduction
1.
The duty to co-operate is not a new one. There are numerous examples in the housing
context of how local authorities and others have been enjoined to co-operate with
others in the furtherance of their duties include the following:
a.
Section 213 of the Housing Act 1996. Housing authorities can request another
housing authority or a social services authority for assistance in discharging its
functions. The requestee shall co-operate in rendering such assistance as is
reasonable in the circumstances.
b.
Section 213A of the Housing Act 1996. Where a social services authority requests
advice and assistance from a local housing authority which has found an
applicant with children is not entitled to the full housing duty the local housing
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authority shall provide such advice and assistance as is reasonable in the
circumstances.
c.
Section 170 of the Housing Act 1996. A registered social landlord shall cooperate to such extent as is reasonable in the circumstances in offering
accommodation to people with priority under the authority’s allocation scheme
on its request.
d.
Section 47(3) of the National Health Services and Community Care Act 1990. A
local housing authority or a PCT is required to assist to such extent as is
reasonable in the circumstances in the making of an assessment of needs where
it appears to the local authority that there may be a need for services from that
PCT or local housing authority.
e.
Section 82 of the NHS Act 2006. NHS bodies and local authorities must cooperate with one another in order to secure and advance the health and welfare
of the people of England and Wales.
f.
Section 325 Criminal Justice Act 2003 requires MAPPA to co-operate with
relevant authorities and relevant authorities to co-operate with MAPPA when it
makes arrangements for assessing and managing risks posed by relevant sexual
and violent offenders and persons who may cause serious harm to the public.
Duty to Co-operate in the Children Acts
2.
The duties to co-operate in the Children Acts 1989 and 2006 are very similar to that in
the Care Act 2014.
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3.
Section 27 of the Children Act 1989 provides that where it appears to a local authority
that any local authority, local housing authority or NHS body could, by taking any
specified action, help in the exercise of any of their functions under this Part, it may
request the help of that other authority specifying the action in question and the
authority whose help is so requested shall comply with the request if it is compatible
with their own statutory or other duties and obligations and does not unduly prejudice
the discharge of any of their functions.
4.
Section 10(1) of the Children Act 2006 provides that each local authority must make
arrangements to promote co-operation between the authority; its relevant partners;
and such other persons or bodies as the authority consider appropriate, being persons
or bodies of any nature who exercise functions or are engaged in activities in relation
to children in the authority’s area.
5.
Section 10(2) of the 2006 Act provides that these arrangements are to be made with a
view to improving the well-being of children in the authority’s area so far as relating to
physical and mental health and emotional well-being; protection from harm and
neglect; education, training and recreation; the contribution made by them to society;
and social and economic well-being.
What Does the Duty to Co-operate under the Children Acts Tell Us?
6.
A duty to co-operate does not equate to an obligation on the asked party to provide
substantive assistance. Section 27 cannot be used by social services authorities to
evade their responsibilities and to compel other authorities to do what they do not
wish to do.
7.
In Northavon DC v Smith [1994] 2 A.C. 402 the applicant and his five children applied
for homelessness assistance.
He was found to be intentionally homeless.
He
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approached Children’s Services for assistance who concluded that the children needed
accommodation but declined to assist. Instead they requested the housing authority,
pursuant to section 27 of the Act of 1989 to provide permanent accommodation or an
extension of the occupancy of their temporary accommodation.
8.
The housing authority refused the request on the ground that they had already fulfilled
their duty to the applicant and his family by determining their homelessness
application. The applicant challenged the housing authority's decision not to comply
with the social services authority's request.
9.
The House of Lords found that the social services authority had no power, by their
request, to require the housing authority to provide accommodation, that the social
services authority's request sought to impose on the housing authority an expense
which the former authority were not prepared to meet and to favour the applicant and
his family in priority to other homelessness applicants; and that the housing authority
could lawfully refuse the request.
10.
The duty to co-operate cannot be used to ‘off load’ the responsibility (as a duty or
power) to provide a service to another local authority. In Worcestershire CC v J [2014]
Civ 1518 the issue was whether a local authority's power to provide services under
section 17 of the Children Act was limited to children in need who were physically
present at the time the services were to be provided, or whether the power extends to
the provision of services to children who, although physically present at the time of
assessment, were outside the area, having moved out of their own volition, at the time
of provision.
11.
The local authority argued that in practice local authorities rely on their duty to
cooperate under section 27 of the Children Act 1989 as the route to ensuring that a
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child's assessed needs are met when a particular child leaves its area of its own
volition. It claimed that a child could travel around the country taking his Children Act
assessment with him and that the assessing local authority would call ahead with a
request that services be provided upon his arrival leaving no gap in provision.
12.
The court did not agree. Lady Justice King said, ‘[w]hilst I accept that local authorities
cooperate with each other on a day to day basis, it would be wrong in my judgment for
a local authority to rely on the s27 CA 1989 duty to co-operate rather than its primary
statutory duty and accompanying power under s17 CA 1989 . Further, in these days of
severe financial stringency it is a considerable leap of faith on the part of this local
authority to suggest that in circumstances where there is a power and not a duty to
provide services, a “foreign” local authority, based only on another authority's
assessment of a child's needs, will provide the funding and resources necessary to meet
those needs in respect of a child who it is known will be in their area for only a matter
of weeks or days.’
13.
Judicial Review should not be used to force co-operation under section 27. Section 27
requires the requestee to co-operate, to consider the request and to determine
whether it can be met without unduly prejudicing its functions. A failure to do this can
be challenged.
14.
However, in Northavon DC v Smith the House of Lords made clear that judicial review
challenges to decisions made pursuant to section 27 should not be made - ‘Judicial
review is not the way to obtain co-operation. The court cannot decide what form cooperation should take. Both forms of authority have difficult tasks which are of great
importance and for which they may feel their resources are not wholly adequate. The
authorities must together do the best they can.’
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15.
In R(T) v Haringey LBC [2005] EWHC 2235 the court explained that this was because of
‘the difficulty in the way of legal action being effective in achieving the necessary cooperation, by its very nature; it incites opposition and entrenched and inflexible
positions rather than the goodwill which is necessary to make such provisions work
effectively.’
16.
Local authorities should co-operate informally first before resorting to a formal
request under section 27. A section 27 request should not be a first port of call. The
House of Lords in Northavon DC v Smith cautioned against using section 27 stating, ‘It
is to be hoped that as a matter of normal practice a social services authority, faced
with the problem of children who are threatened with homelessness, will explore the
possibility of obtaining council accommodation informally and in a spirit of mutual cooperation rather than by an immediate formal request, unsupported by any offer of
contribution, under the provisions of section 27.’
17.
Section 27 of the Children Act 1989 does not apply to a situation in which one
department requests help from another department within the same authority. In R(C)
v Hackney [2014] EWHC 3670 (Admin) the claimants (children) were living with their
mother in a flat Hackney accepted was unsuitable. The claimants brought judicial
review proceedings to require Hackney to provide a three bedroom flat with access to
outdoor space. The claim was compromised on the basis that Hackney’s Children’s
Services wrote to Hackney’s Housing Department pursuant to section 27 requiring
them to provide the accommodation.
The letter was written. The family grew
impatient with the delay in providing accommodation and issued another claim
requiring Hackney to provide them with such accommodation forthwith and that the
failure of Hackney Housing to comply with the request from Hackney Children’s
Services was unlawful.
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18.
As a preliminary issue Hackney claimed that as a matter of statutory construction
section 27 did not apply to situations where Housing and Children’s Services were in
the same local authority. The court agreed – it does not apply to unitary authorities as
there was no ‘other’ authority in that situation.
19.
At the very least the duty of co-operation requires a local authority to have clear
protocols for co-operation and joint assessment. The case of R(M) v Hammersmith
and Fulham LBC [2008] UKHL 14 considered who was responsible for homeless 16 and
17 year olds. It concluded that if the criteria in the Children Act 1989 were met, social
services should take long term responsibility, and it could not avoid such responsibility
by looking to the housing authority to accommodate the child. But each department
had a statutory duty to co-operate and in order to ensure that children ‘did not fall
between two stools’ or were ‘passed from pillar to post’ it was necessary to have a
joint protocol between the local housing authority and the children's services authority
to assess needs and make sure that the most appropriate agency took responsibility.
The Duties to Co-operate Under the Care Act 2014
20.
The Care Act introduces two separate provisions dealing with co-operation. Section 6
deals with the general duty to co-operate. Section 7 deals with a specific duty to cooperate.
Who Must Co-operate?
21.
(1) Relevant partners. Section 6(1) of the Care Act provides that a local authority must
co-operate with its relevant partners and its relevant partners must co-operate with it
in the exercise of their respective functions relating to adults with care and support
needs and carers.
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22.
Who is a Relevant Partner? Sections 6(7) (a), (c) – (h) of the Care Act provide that a
relevant partner is a district council where the local authority is a county council, each
NHS body in the authority’s area, the DWP, the police in the authority’s area, the
prison service, the probation service (and other persons regulations may specify; no
such regulations yet).
23.
(2) Local authorities and District Councils it is agreed it would be appropriate to cooperate with. Section 6(7)(b) provides that a relevant partner is any local authority, or
district council for an area in England for which there is a county council, with which
the authority agrees it would be appropriate to co-operate under this section
(emphasis added).
24.
As such, as regards other local authorities, the general duty to co-operate is only
triggered if the authorities have agreed that it would be appropriate to co-operate
under this section. There is therefore a significant dilution of the need for cross border
local authority co-operation.
25.
Therefore each local authority will need to formulate a policy to determine whether it
wants to enter into an agreement that it would be appropriate to co-operate under
section 6 with other local authorities, what other local authorizes and/or in what sets
of circumstances it might wish to do so.
26.
The Guidance at paragraph 15.21 provides little help. It states that section 6(7)(b)
refers to “any other local authority which would be appropriate to co-operate with in a
particular set of circumstances (for example, another authority which is arranging care
for a person in the home area).”
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27.
(3) Other appropriate persons. Section 6(2) of the Care Act provides that a local
authority must co-operate with such other persons as it considers appropriate who
exercise functions, or are engaged in activities, in the authority’s area relating to adults
with needs for care and support or relating to carers.
28.
Section 6(3) of the Care Act gives examples of persons a local authority may consider it
appropriate to co-operate with. These are providers of care and support services, NHS
GPs, dentists, ophthalmologists and pharmacies, private hospitals, and a private
registered provider of social housing.
29.
As such a local authority will have to formulate a policy as to who it considers
appropriate to co-operate with under section 6. Consideration of appropriate bodies is
not limited to the list. Further, the section does not require that everybody in a
particular class must be considered appropriate. I.e. it might lawfully decide to cooperate private provider of social housing X but not private provider of social housing
Y.
30.
There is no reciprocal provision that these person’s co-operate with the local
authority. If you are a private registered provider of social housing there is no duty on
you to co-operate.
31.
The Guidance at paragraph 15.21 provides that, ‘in these cases, the local authority
should consider what degree of co-operation is required, and what mechanisms it may
have in place to ensure mutual co-operation (for example, via contractual means).’
32.
(4) Other departments in the local authority. Section 6(4) of the Care Act provides that
a local authority must make arrangements for ensuring co-operation between Adult
Social Care, Children’s Services, Housing and the authority’s director of public health.
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33.
Section 6(4) only requires that arrangements are made to ensure co-operation. This
falls short of a duty to co-operate.
34.
The Guidance at paragraph 15.23 suggests that co-operation within a local authority
will include officers include offering training and establishing systems for information
sharing or multi-disciplinary teams.
Co-operation for what purpose?
35.
Section 6(6) of the Care Act provides that the local authority must co-operate in the
exercise of its functions for the purposes of promoting wellbeing, improving quality of
care, smoothing the transition from children to adult services, safeguarding and case
reviews.
The Specific Duty to Co-operate
36.
Section 7 of the Care Act provides that where a local authority requests the cooperation of a relevant partner or a local authority which is not one of its relevant
partners in the exercise of its functions under Part 1 of the Care Act the partner or
authority must comply with the request unless it considers that doing so would be
incompatible with its own duties, or would otherwise have an adverse effect on the
exercise of its functions. Section 7(2) provides that it is a reciprocal function i.e. each
must co-operate with the other.
37.
The Guidance at paragraph 15.27 states that section 7 should be used when
notwithstanding the general working protocols and relationships between
organisations ‘a more targeted co-operation’ is required for ‘a more tailored response’.
It advises that if section 7 is to be used the request should be in writing and requestees
must respond to requests to cooperate under their general public law duties to act
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reasonably, and failure to respond within a reasonable time frame could be subject to
judicial review.
Areas of Legal Complexity or Uncertainty
Can a service user challenge a decision to refuse to co-operate under section 7?
38.
Yes. Although the obvious claimant in any proceedings under section 7 is the
requesting authority (see paragraph 96 of R(T) v Haringey) a service user is likely to
have standing to bring a judicial review claim. In R(C) v Hackney the claimants were
the children for whose benefit the request had been made.
39.
The test to assess standing is whether the claimant has sufficient interest in the matter
to which the claim relates. What is sufficient interest is a mixed question of fact and
law and a question of fact and degree having regard to the relationship between the
claimant, the claim and all other circumstances. Where the request is made for the
benefit of a service user and thus has a direct personal interest it is very likely that a
court will consider he has sufficient interest in the matter.
Will my existing protocols for co-operation suffice?
40.
It will be prudent to reconsider and update them in the light of the Care Act. This is
because the duty of co-operation under section 6 is to be used for the specific
purposes set out in section 6(7). Some of these purposes e.g. promoting wellbeing and
smoothing the transition from children’s services to adult services are new.
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Exception for housing
Relevant Statutory Provisions:

Section 23 Care Act 2014
What is the exception for housing?
1. Section 23 of the Care Act 2014 provides that local authorities may not meet an adult’s
care and support needs by doing anything which it required to do in any event under the
housing legislation. This would include provision of general housing or Disabled Facilities
Grants both under the Housing Act1996.
2. The section therefore maintains the existing distinction and legal boundary between a
local authority’s social care and housing functions. This is important to keep in mind,
particularly in light of the various other provisions (discussed in this seminar) which focus
on linking up, rather than keeping distinct, these two areas.
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Safeguarding
Relevant Statutory Provisions:

Sections 42 to 47 Care Act 2014
Relevant Guidance:

Chapter 14 Statutory Guidance
Introduction
1. Sections 42 to 47 of the Care Act places safeguarding of vulnerable adults on a statutory
footing for the first time. Until now, safeguarding has been based in policy and statutory
guidance (e.g. the ‘No Secrets’ guidance) and the Care Act 2014 now enshrines in law
much of the practice already adopted by local authorities and other relevant bodies in
accordance with guidance.
Safeguarding under the Care Act 2014
2. Local authorities remain the lead agency for adult safeguarding under the new
provisions. Local authorities have a duty to make enquiries where it is suspected that an
adult is experiencing or may be at risk of abuse or neglect and is unable to protect
himself against the abuse/neglect (s.42).
Local authority housing staff, and those
advising them, must be equally aware of these duties as social care professionals.
3. Safeguarding Adults Boards (SABs) become mandatory statutory bodies with the local
authority, NHS and police being the key statutory partners. Other agencies may also be
invited to be represented on SABs and the Statutory Guidance specifically suggests that
housing and housing support providers may be included.
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4. The Care Act 2014 repeals the power in s.47 National Assistance Act 1948 for local
authorities to be able to remove a person from premises so as to be cared for. This
repeal is based on human rights.
The role of housing providers
5. The nature of the contact that housing providers (whether local authority housing
officers or other providers) is such that they are often best placed to pick up
safeguarding issues in the first instance (e.g. neighbours reporting domestic violence to
anti-social behavior teams or difficulties in obtaining proper access to do routine
maintenance which raises the alarm about self-neglect or hoarding). As such they not
only need to have safeguarding training and procedures in place for staff but may also
seek to have representation on the local SABs.
6. It is likely that all social housing providers will be familiar with safeguarding principles
and most will have some form of policies and procedures in place for dealing with it.
Some may not though or may have out of date policies which require updating.
7. With the emphasis on joined up working and integration, prevention and cooperation (as
discussed elsewhere) housing providers may potentially play an even stronger role in
safeguarding vulnerable adults.
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