1. education
2. adult education

06/02/2015
The Care Act 2014
Luke Clements
www.lukeclements.com
Care Act 2014
AN
The Care Act 2014
ACT
TO
Make provision to reform the law relating to care and
adults and the law relating to support for
support for adults
carers;
Legislation to be repealed
• National Assistance Act 1948
• Health Services & Public Health Act 1968
• Chronically Sick and Disabled Persons Act 1970 (but
only for adults)
• Health & Social Services & Social Security Adjudications
Act 1983
• Disabled Persons (Services, Consultation and
Representation) Act 1986
• NHS & Community Care Act 1990
• Carers Acts (but not the 1995 Act section 1)
• Health & Social Care Act 2001 (DPs)
Not
s117 MHA 1983 or DFGs
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Primary Statute
• Principle rights /duties
Regulations
• Charging / Eligiblity
Code of Practice
Guidance
Status of Guidance
Guidance
LAs
must act under the guidance:
Must follow it, unless demonstrate sound legal
reasons for not doing so’. (s78 Care 2014)
Definitions
Adult
• ‘in need’
• has ‘a physical or mental impairment or illness’.
Carer
• an adult who provides or intends to provide care
for someone but is not contracted to provide the
care or providing the care as formal ‘voluntary
work’ (s10).
Individual
Principles (section 1)
Well-being
• A general duty
• The making explicit of the duty to promote an
individual’s well-being
– applies when exercising ‘any function under
Bill
– ‘individual’ includes both ‘adults in need and
adult carers
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Well-being
“Well-being” relates to:
(a) personal dignity
(b) physical / mental health / emotional well-being;
(c) protection from abuse and neglect;
(d) control over day-to-day life inc nature of care 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 adult’s contribution to society.
Well-being
“Well-being”
LA must have regard to—
(a) assumption that the ‘individual’ is best placed to judge wellbeing;
(b) individual’s views, wishes and feelings;
(c) take into account all the individual’s circumstances (and nondiscriminatory in terms of stereotyping etc);
(d) individual participating (with support if needs be) as fully as
possible in decisions about them;
(e) a balance between the individual’s well-being and that of any
friends or relatives involved in their care;
(f) the need to protect people from abuse and neglect;
(g) any restrictions kept to the minimum necessary.
Independent living
• 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
Guidance (para 1.19)
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Prevention (section 2)
Preventing needs for care and support
Duty to provide a range of preventative services that will:
(a) contribute towards preventing or delaying the development by
adults in its area of needs for care and support;
(b) contribute towards preventing or delaying the development by
carers in its area of needs for support;
(c) reduce the needs for care and support of adults in its area;
(d) reduce the needs for support of carers in its area.
eg
carers centres / carers breaks / carer employment support;
Adaptations
Young carers – LAs should consider how supporting the adult
can prevent YC from undertaking inappropriate care (para 2.49)
Integration (section 3)
Integration with the NHS
Duty on LA‘s to promote integration with health provision where it
would—
(a) promote the well-being of adults with needs & carers in its area; or
(b) contribute to the prevention of the development of needs in adults /
carers; or
(c) improve the quality of care for adults / carers, provided
New section (4 Feb 2014 C/ee stage)
• Places Better Care Fund on a statutory basis (s223B NHS Act 2006)
Information (section 4)
Information
The provision of a service to provide adults in need / carers
with information about care and support;
Includes:
• how the LA care system operates;
• the choice of types of care and support, and the choice
of providers in the local authority’s area,
• how to access the care and support that is available;
• how to access independent financial advice;
• how to raise concerns about safety /well-being of an
adult who has needs for care and support
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Effective high quality providers
section 5: Duty to promote effective & efficient
markets, to ensure a variety of :
• providers;
• variety of services; and
• variety of high quality services.
• Does this require any public services?
• Issue of ‘actual cost’ vs ‘usual cost’
• Need to understand demand / self–funding supply
Cooperation
section 6 ~ general duty to cooperate
section 7 ~ specific duty to cooperate
Where LA requests co-operation of a ‘relevant partner’ (or
vice versa) in relation to an ‘individual with needs’ or a
carer, a carer of a child or a young carer, then they must
comply with the request unless it would:
(a) be incompatible with its duties, or
(b) have an adverse effect on the exercise of its functions.
Duty to give reasons if refuses
Mirrors existing s27 Children Act 1989
Non-delegable (section 79(2)
Care & support (section 8)
Range of care & support for carers / adults in need
a) accommodation in a care home or in premises of some
other type;
b) care and support at home or in the community;
c) counselling, advocacy and other types of social work;
d) goods and facilities;
e) information and advice.
Problems;
• Silent on ‘adaptations’ ‘travel’; or ‘holidays’?
• Charging for carers, advocacy, social work, information?
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Delegation
section 79
Enables LAs to delegate all of their functions under the Act
– with few exceptions (eg safeguarding);
(6) Act / omissions by delegated body to be treated as
done / omitted to be done by the LA.
Many carers support groups already doing what are in
effect LA ‘assessments’
Jumping the gun
The Contracting Out (Local Authorities Social Services
Functions) (England) Order 2014
Charging
Principles (para 8.2)
• not charged more than reasonably practicable to pay;
• be comprehensive, to reduce variation in the way people
are assessed and charged;
• Clear/ transparent, so people know what will be charged;
• promote wellbeing, social inclusion & support the vision
of personalisation, independence, choice and control;
• support carers to look after their own health and
wellbeing and to care effectively and safely;
• be person-focused … ;
Charging
Principles (para 8.2)
• apply the charging rules equally so those with similar
needs or services are treated the same and minimise
anomalies between different care settings;
• encourage and enable those who wish to stay in or take
up employment, education or training or plan for the
future costs of meeting their needs to do so; and
• be sustainable for local authorities in the long-term.
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Charging & assessments
section 14(4)
• A charge … may cover only the cost that the
local authority incurs in meeting the needs to
which the charge applies.
The Minister of State [DoH] Norman Lamb
• the Bill does not give a power to local authorities
to charge for carrying out a needs or carer’s
assessment in any circumstances.
14 January 2014 column 154 Public Bill Committee
Assessment of adults in need
section 9
Mirrors existing s47 NHS&CC 1990 duty
Duty ‘to involve carer’
Care & Support (Eligibility Criteria) Regulations reg 2(3) an
adult in need is unable to achieve an outcome if only able
to do it with assistance
• LAs must consider all of the adult’s care … needs,
regardless of any support being provided by a carer. …
information on the care that [the carer provides]… can
be captured during assessment, but it must not influence
the eligibility determination.(para 6.15)
Assessment
adults
in need
An adult’s needsof
meet
the eligibility
criteria if—
(a) the needs are caused by a physical or mental impairment
or illness;
(b) as a result of the adult’s needs the adult is unable to
achieve two or more outcomes; and
(c) as a consequence there is, or is likely to be, a significant
impact on the adult’s well-being.
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Significant
Guidance
‘Significant’ is not defined
• LAs must consider whether whether the …
inability to achieve the relevant outcomes will
have an important, consequential effect on …
independence and their wellbeing’ (para 6.110);
• ‘Needs may affect different people differently …
Circumstances which create a significant impact
on the wellbeing of one individual may not have
the same effect on another’ (para 6.111)
Significant
SCIE ‘resource’
‘significant’ in a consequence of a cumulative effect:
• ‘the individual may have needs across several of the
eligibility outcomes, perhaps at a relatively low level, but as
these needs affect the individual in various areas of their
life, the overall impact on the individual is significant.
• eg ‘an adult is struggling to manage and maintain their
nutrition, personal hygiene and toilet needs as their
standards are reducing due to low social interaction and
decreasing mobility around the home. The adult is
consequently very close to becoming unable to meet most
of the outcomes.
Significant
SCIE ‘resource’
• It could be argued that the adult does not meet condition 3
of the eligibility criteria for adults … due to the level of
needs being relatively low. However, taking a holistic view
of the level of impact of the individual’s mobility needs, and
the accumulation of a number of the ‘low/medium’ levels of
needs, this adds up to a ‘significant impact’ in the adult’s
wellbeing.
• Significant impact could be a consequence of a domino
effect: this means that currently the individual may have
needs in relation to few eligibility outcomes, but it can be
anticipated that in the near future other outcomes will be
affected, causing a significant impact on the individual’s
wellbeing.
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Unable to achieve 2 or more of:
Assessment
of adults
in need
(a) managing and maintaining
nutrition;
(b)
(c)
(d)
(e)
(f)
(g)
maintaining personal hygiene;
managing toilet needs;
being appropriately clothed;
being able to make use of the adult’s home safely;
maintaining a habitable home environment;
developing and maintaining family or other personal
relationships;
(h) accessing and engaging in work, training, education or
volunteering;
(i) making use of necessary facilities or services in the local
community including public transport, and recreational
facilities or services; and
(j) carrying out caring responsibilities the adult has for a
child.
unable to achieve an outcome if —
(a) is unable to achieve it without assistance;
(b) is able
to achieve
it without assistance but doing so
Fleshing
out
the detail
causes the adult significant pain, distress or anxiety;
section
12 to achieve it without assistance but doing so
(c) is able
endangers or is likely to endanger the health or safety of
the adult, or /ofcare
others;
or
• Assessments
& support
plans in regulations
(d) is able to achieve it without assistance but takes
• Subject
to statutory and practice guidance etc.
significantly longer than would normally be expected.
• Select C’ee recommend Code of Practice (section 50)
section 13
• Eligibility criteria (FACS) to be put in regulations;
Guidance on meaning of
‘outcomes’
Question
If social services decide that an outcome a person is
‘unable to achieve’ has a ‘significant’ impact then:
to what extent does the way the guidance defines an
outcome create an expectation that the local authority will
meet that outcome in the way it has been described?
• The McDonald question?
• Section 1 principles ~ ie the assumption that the
‘individual’ is best placed to judge well-being;
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Guidance para 6.107
managing and maintaining nutrition.
• whether the adult has access to food and drink to
maintain nutrition, and that the adult is able to prepare
and consume the food and drink.
maintaining personal hygiene
• LAs should, for example, consider the adult’s ability to
wash themselves and launder their clothes.
managing toilet needs
• LAs should consider the adult’s ability to access and use
a toilet and manage their toilet needs.
Guidance para 6.107
(d) being appropriately clothed.
• LAs should consider the adult’s ability to dress
themselves and to be appropriately dressed, for instance
in relation to the weather to maintain their health.
(e) being able to make use of the home safely
• the adult’s ability to move around the home safely, which
could for example include getting up steps, using kitchen
facilities or accessing the bathroom. This should also
include the immediate environment around the home
such as access to the property, for example steps
leading up to the home.
Guidance para 6.107
(f) maintaining a habitable home environment.
• whether the condition of the adult’s home is sufficiently
clean and maintained to be safe. A habitable home is
safe and has essential amenities. An adult may require
support to sustain their occupancy of the home & to
amenities, such as water, electricity, gas.
(g) developing & maintaining family / relationships
• whether the adult is lonely or isolated, either because
their needs prevent them from maintaining the personal
relationships they have or because their needs prevent
them from developing new relationships.
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Guidance para 6.107
(h) accessing /engaging in work, training, education or
volunteering
• whether the adult has an opportunity to apply
themselves and contribute to society through work,
training, education or volunteering, subject to their own
wishes in this regard. .. includes physical access to any
facility & support with participation in the relevant activity.
Guidance para 6.107
(i) making use of necessary facilities or services in the
local community including public transport and
recreational facilities or services
• the adult’s ability to get around in the community safely
and consider their ability to use such facilities as public
transport, shops or recreational facilities when
considering the impact on their wellbeing. LAs do not
have responsibility for the provision of NHS services
such as patient transport, however they should consider
needs for support when the adult is attending healthcare
appointments.
Guidance para 6.107
(j) carrying out any caring responsibilities the adult has
for a child
• LAs should consider any parenting or other caring
responsibilities the person has. The adult may for
example be a step-parent with caring responsibilities for
their spouse’s children.
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Fluctuating need
SCIE ‘resource’
• an accurate assessment of care needs – must fully
explore ‘the “good” and “bad” … over a suitable period of
time to provide as complete a picture of the range of
fluctuation as possible.
• It is important to note that “suitable” length of time in this
instance will vary from person to person.
Assessment of adults in need
Guidance
• Where appropriate, an assessment may be carried out
over the phone or online. …
• local authorities should consider whether the proposed
means of carrying out the assessment poses any
challenges or risks for certain groups, particularly when
assuring itself that it has fulfilled its duties around
safeguarding, independent advocacy, and assessing
mental capacity
Appropriately trained assessors
Guidance
• social workers and occupational therapists can provide
important support and may be involved in complex
assessments which indicate a wide range of needs, risks
and strengths …
• assessors must be ‘appropriately trained’.
• if an ‘assessor does not have the knowledge of a
particular condition or circumstance, they must consult
someone who has relevant expertise’
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Proportionate assessments
SCIE ‘resource’
Aproportionate assessment involves (among other
things):
• both hearing and understanding the initial
presenting problem
• not taking this at ‘face value’
• ensuring any underlying needs are also explored
and understood.
Carers Assessments (s10)
Duty to assess
• Largely codifies the existing Carers Acts – but
drops
– the ‘regular & substantial’ requirement
– the ‘request’
s10(3) defines a carer as ‘an adult who provides or
intends to provide care for another adult’ (but
excludes paid carers / volunteers)
Carers Assessments (s10)
What is ‘care’?
• both practical and emotional support (para 6.18)
• Section 1 physical /mental health /emotional well-being?
Previous guidance
• may relate to being ‘anxious and stressed waiting for, or
actively seeking to prevent, the next crisis’.
• encompasses both the notion of ‘caring about someone’
as well as ‘caring for them’
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Carers Assessments (s10)
Basic principles
• whether the carer able / willing to provide and continue
to provide the care;
• the impact on the carers ‘well-being’;
• the outcomes the carer wishes in day-to-day life;
• whether the carer works or wishes to (and / or) to
participate in education, training or recreation.
Carers Assessments
Private / combined assessments
• ‘only if the adult to whom the needs or carer’s
assessment relates agrees’ – s12(5)
• if ‘either of the individuals concerned does not agree to a
combined assessment, then the assessments must be
carried out separately’ (ra 6.74 )
Advocacy / support
• LAs must involve ‘any person whom the carer asks the
authority to involve’. s10(7)
Eligibility criteria ~ carers ( reg 3)
A carer’s needs meet the eligibility criteria if
• The needs arise as a consequence of providing necessary
care for an adult
• The effect of the carer’s needs is that any of the circumstances
specified below apply to the carer
• As a consequence there is, or is likely to be, a significant
significant impact
on the carer’s well-being.
‘Significant’ is not defined
Should have its ‘everyday meaning’ (para 6.130)
LAs must consider whether the carer’s needs and their inability
to achieve the outcomes will have:
• an important, consequential effect on their daily lives, their
independence and their own wellbeing (para 6.130)
Circumstances which create a significant impact on the
wellbeing of one individual may not have the same effect on
another (para 6.131)
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1. Needs arise as a consequence of caring for an adult;
2. One of the circumstances listed below exits;
3. A significant impact on the carer’s well-being occurs
Outcomes
(a) the carer’s physical or mental health is, or is at risk of,
deteriorating;
(b) the carer is unable to achieve any of the following outcomes
i. carrying out any caring responsibilities the carer has for a child;
ii. providing care to other persons for whom the carer provides
care;
iii. maintaining a habitable home environment in the carers home
(whether or not this is also the home of the adult needing care);
iv. managing and maintaining nutrition;
v. developing and maintaining family or other personal
relationships;
vi. engaging in work, training, education or volunteering;
vii. making use of necessary facilities or services in the local
community, including recreational facilities or services; and
viii.engaging in recreational activities.
Carer eligible vs adult non-eligible
section 20
(7) A LA may meet … a carer’s needs for support in a way
which involves the provision of care and support to the
adult needing care, even if the LA would not be required
to meet the adult’s needs … .
(8) Where a LA is required by this section to meet some or
all of a carer’s needs for support but it does not prove
feasible for it to do so by providing care and support to
the adult needing care, it must, so far as it is feasible to
do so, identify some other way in which to do so.
Care & support plans
Respite and replacement care
• The guidance refers to support where the LA meeting a
carer’s needs by providing a service directly to the adult
needing care as ‘replacement care.
• Divya example (p196 guidance)
• Caring for father who has a DP and her 4 children:
• Divya received a carers’ direct payment, which she uses
for her children to attend summer play schemes so that
she get some free time to meet with friends and socialise
when the family member providers care to her father.
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Care & support plans
Respite and replacement care
• Where the carer is eligible for support but the adult being
cared is not – and accordingly ‘does not have their own
personal budget or care plan’ (para 11.42) – the carer could
(eg) request a direct payment, and use that to commission
their own replacement care from an agency (para 11.44).
• If such a type of replacement care is charged for… then
it would be the adult needing care that would pay, not
the carer, because they are the direct recipient of the
service (para 11.45)
Care & support plans
Respite and replacement care
• For the purposes of charging, the PB which the carer
receives must specify the costs to the LA and the costs
to the adult, based on the charging guidance ….
• In this case, “the adult” refers to the carer, because they
are the adult whose needs are being met. However, in
instances where replacement care is being provided, the
carer should not be charged;
• if charges are due to be paid then these have to be met
by the adult needing care. Any such charges would not
be recorded in the personal budget, but should be set
out clearly and agreed by those concerned.
Care & support plans
Replacement care & NHS continuing healthcare?
What if the replacement care (identified in carer’s assessment)
is for an adult in receipt of NHS CC funding?
• NHS would be responsible for this.
• What if it failed / refused to provide this?
Social services could make a section 7 request
Where LA requests co-operation of a ‘relevant partner’ in relation to
an ‘individual with needs’ or a carer, a carer of a child or a young
carer, then it must comply with the request unless it would:
(a) be incompatible with its duties, or
(b) have an adverse effect on the exercise of its functions
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Care & support plans
Carers Services
• relaxation classes, training on stress management, gym
or leisure centre membership, adult learning,
development of new work skills or refreshing existing
skills (so they might be able to stay in paid employment
alongside caring or take up return to paid work), pursuit
of hobbies such as the purchase of a garden shed, or
purchase of laptop so they can stay in touch with family
and friends.
para 11.41
Care & support plans
section 25 ~ Care and support plans
Similar to current – but makes PBs mandatory for adults in
need and carers
section 26
Amount of a PB is
• The cost to the local authority of meeting the adult’s
needs
Care & Support Plans
Key components of any care and support plan (para
10.36):
• the needs identified by the assessment;
• the extent to which the needs meet the eligibility criteria;
• how the LA is going to meet the needs;
• the desired outcomes of the adult ‘in need’;
• the outcomes the carer wishes to achieve (inc work,
education and recreation);
• the personal budget …;
• information / advice on what can be done to reduce the
needs / prevent or delay development of needs ;
• where a direct payment … , the needs to be met via the
DP, the amount and frequency of the payments.
??? A review date ???
What if all needs being met by universal services / the carers?
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Care & support plans
Funding Panels ~ Legally dubious
Due regard should be taken to the use of approval panels
in both the timeliness and bureaucracy of the planning and
sign-off process. In some cases, panels may be an
appropriate governance mechanism to sign-off large or
unique personal budget allocations and/or plans. Where
used, panels should be appropriately skilled and trained,
and local authorities should refrain from creating or using
panels that seek to amend planning decisions, micromanage the planning process or are in place purely for
financial reasons. … (para 10.85)
Care & support plans
‘Needs’ vs ‘outcomes’
• outcomes aim to identify the person’s ‘aspirations, goals and
priorities’
• assessments that focuses on these break free from the
shackles thought processes tied to existing service models
• outcomes focused research identifies the importance of
avoiding prescriptive ‘tick box’ questionnaires and of the need
for a strong human relationships with assessors who have the
skills and time to enable this approach to succeed
• increasing disconnect between what service users / carers
say and related evidence, and the thinking of government and
policy-makers and what they seem to be doing
Care & support plans
Local authority financial difficulties
• Current law remains (ie Gloucestershire judgment)
• LAs can ‘take into reasonable consideration’ of their
finances, they ‘must comply’ with their legal obligations.
A local authority’s finances are relevant when it decides
how to meet the eligible needs of an individual ‘but not
whether those needs are met’. (para 10.27)
• LAs ‘should not set arbitrary upper limits on the costs
[they are] willing to pay to meet needs through certain
routes’ (para 10.27)
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Care & support plans
Local authority financial difficulties
LAs may:
• take decisions on a case-by-case basis which weigh up
the total costs of different potential options for meeting
needs, and include the cost as a relevant factor in
deciding between suitable alternative options for meeting
needs. This does not mean choosing the cheapest
option; but the one which delivers the outcomes desired
for the best value. (para 10.27)
Care & support plans
section 25 .. In preparing a C&S plan the LA must
involve:
(3) the adult for whom it is being prepared,
• any carer that the adult has, and
• ….
• … any person who appears to the authority to be
interested in the adult’s welfare.
(4) the carer for whom it is being prepared,
• the adult needing care, if the carer asks the authority
to do so, and
• any other person whom the carer asks … .
Copies
Guidance
The assessment
• the individual ‘must be given a record of their needs or
carer’s assessment’ (para 6.98).
Care Plan
• the local authority must give a copy of the final plan in a
format that is accessible to the person for whom the plan
is intended, any other person they request to receive a
copy, and their independent advocate if they have one.
(para 10.87)
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Reviews / reassessments
Section 27(1)
• Duty to keep under review care and support plans
• Expectation that plans will reviewed at last every 12 months
and light-touch review 6-8 weeks after the plan and personal
budget signed off’ (para 10.42 / 13.32)
• Reviews must person-centred, accessible and proportionate:
must involve the ‘person needing care and also the carer
where feasible’ (para 13.2)
• Purpose is identify if the person’s needs / circumstances have
changed’ (para 13.4).
• The ‘review must not be used as a mechanism to arbitrarily
reduce the level of a person’s personal budget’ (para 13.4).
• .
Personal Budget
Guidance:
• The personal budget must always be an amount
sufficient to meet the person’s care and support needs
• Must include the cost to the LA of meeting the person’s
needs which the LA is under a duty to meet, or has
exercised its power to do so.
• This overall cost must then be broken down into the
amount the person must pay, following the financial
assessment, and the remainder of the budget that the
authority will pay.
Personal Budget
• The expectation that PBs will change as the care and
support planning process progresses.
• Start with an ‘indicative amount’;
• ‘final amount of the personal budget confirmed through this
process’ (para 11.7).
• No for a Resource Allocation System (RAS) to generate a
figure – a LA might have (eg) a simple set of ‘bands’
• ‘complex RAS models of allocation may not work for all
client groups’ (para 11.23)
• ‘regardless of the process used, the most important
principles in setting the personal budget are transparency,
timeliness and sufficiency’ (para 11.24).
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Independent personal budget
section 28
• An independent personal budget is a statement which
specifies what the cost would be to the local authority of
meeting the adult’s eligible needs for care and support
section 29 ~ care account
• must specify the amount that is attributable to the adult’s
daily living costs;
• must specify the amount that counts towards the
expenditure cap and the amount attributable to daily
living costs.
Duty to provide care & support
section 18 ~ support for adults in need
Duty to provide applies where:
• Individual is ordinarily resident in LA area; and
• Individual has eligible needs: and
• Individual’s finances below maximum allowance; or
• Individual’s finances above maximum allowance and they
ask the LA to provide
Self funder support delay
Given the nature of the concerns arising in the
consultation, and recognising the need for further
evidence, we have decided to delay the implementation
of this provision for one year, until April 2016, insofar as
it relates to people whose needs are to be met in care
homes.
This additional time will allow for further analysis and a
better common understanding of the issues, to identify
risks to the care and support system and to individuals,
and to develop strategies for implementing this most
effectively.
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Duty to provide care & support
section 18 ~ support for adults in need
Duty to self funders;
• ADASS believes an extra 180,000 to 230,000 people
being assessed and an extra 440,000 to 530,000
reviews in 2016-17;
• Likely to distort care market
• May be a charge for this service
The ‘cap on costs’
Cap on costs
sections 15-16
Dilnot (2016)
•
•
•
•
In 2012 - 24,500 people sold homes to cover care costs;
Recommended cap at £35,000 (max £50,000);
Cap will be £72,000 for those on state pensions in 2016
Board & accommodation (Daily Living Costs) assumed to
cost £12,000 pa (2017 prices);
• DLC liability continues even when cap ‘hit’;
• Lower cap / no cap for young disabled people
‘Taxi meter’
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Cap on Care Costs
• Vast bureaucracy /increase in assessments / care plans;
• Care account to be retained for 99 years (section 29)
• Deferred payments (sections 34-36) £23,250 cap
Cap on Care Costs
Capital changes
£118,000 upper limit if a house taken into account;
£27,000 upper limit if no house taken into account;
£17,000 lower limit in residential care;
• Interest £1 per week per £250 above lower limit
• Thus £117,000 capital ?
• deemed to generate £20,000 pa
Adult with £118,000 assets gains virtually nothing due to:
(a) The above interest charges; and
(b) The loss of their AA (higher rate or c £87pw at 2016 rates)
Lord Lipsey House of Lords Hansard 16 July 2013 : Column 727 at
www.publications.parliament.uk/pa/ld201314/ldhansrd/text/130716-0003.htm
Charging self funders
section 14(1)
• may charge for ‘for putting in place the
arrangements for meeting’ needs’
section 14(4)
• only the cost a LA incurs in meeting the needs.
Care & Support (Charging and Assessment of
Resources) Regulations 2014 reg 5
• only cover the cost that the LA incurs in putting
in place the arrangements for meeting the needs
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Charging self funders
8.58 Arrangement fees charged by LA must cover
only the costs that the LA actually incur in
arranging care. Arrangement fees should take
account of the cost of negotiating and/or managing
the contract with a provider and cover any
administration costs incurred.
8.59. Local authorities must not charge people for
a financial assessment, a needs assessment or
the preparation of a care and support plan.
Direct Payments (ss 31 - 33)
Little change – but:
1. The regulations ‘soften’ the presumption against making
payments to spouses / partners / relatives living in the
same house;
• payments can be made ‘if the LA considers it is
necessary to do so’; and
• payment can include not only the cost of meeting the
adult’s need – but also for the cost of providing
administrative and management support or services
2. Expected to extend to residential care (from April 2016)
• Pilot sites currently running
Continuity of care (portability)
sections 37-38
• If 1st authority notifies 2nd authority that person is moving;
• When move happens:
• If 2nd authority not assessed / or put in place care plan
for adult in need and/or carer:
• Then 2nd authority must meet the same needs as 1 st
authority
• Until it has assessed / produced care plan
If 2nd authority’s assessment of adult / carer differs from 1 st
authority’s it must provide written explanation
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Ordinary residence (ss39 – 41)
Basic principle remains – OR is your ‘base’
Two ‘deeming rules’
1. If in an NHS facility, OR is were person was based
immediately before the NHS accommodation
2. Modification to second ‘rule’
If a LA arranges and funds care in a care home then the
person is deemed to be OR in the LA’s area even if the
care home is in another area
This is extended to cover ‘shared lives scheme’ and
supported living accommodation in England.
LA responsibility only attaches if the care and support ‘can
be met only’ in the specified accommodation
Supported living / extra care housing
• 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; or
• 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.
Supported living / extra care housing
• 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 scheme the shared lives 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.
The Care and Support (Ordinary Residence) (Specified Accommodation)
Regulations 2014 (regs 4 & 5) and The Care and Support and After-care
(Choice of Accommodation) Regulations 2014 (regs 7 & 8)
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NHS interface
section 22 ~ NHS Continuing Care
Couglan – prohibits LA providing nursing care that the NHS
has a ‘power or duty’ to provide;
• section 21 – only prohibits LA providing nursing care that
the NHS has a ‘duty’ to provide;
NHS interface
Minister stated:
• The provisions in section 22 are not intended to change
the current boundary—let me place that clearly on the
record—and we do not believe that they will have that
result. The limits on the responsibility by reference, as
now, to what should be provided by the NHS remain the
same’.
Public Bill Committee Report 16 January 2014 (page 205/208)
Safeguarding
sections 42 - 47
Duty to make enquiries if adult
• with care & support needs:
• is experiencing, or is at risk of abuse of neglect; and
• is unable to protect self against the abuse / neglect
Duty to have a Safeguarding Board
• No power of entry / removal;
• Abolition of s47 NAA 1948 power;
• Retains power to protect property (s47)
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What is abuse / neglect (para 14.17)
Physical abuse / Sexual abuse / Modern slavery
Domestic violence / Psychological abuse;
Financial abuse (section 42(3));
Discriminatory abuse:
• including ‘harassment, slurs etc because of race, gender
and gender identity, age, disability, sexual orientation or
religion’
What is abuse / neglect (para 14.17)
Organisational abuse:
• eg ‘neglect and poor care practice’ in a hospital or care
home including ‘neglect or poor professional practice as
a result of the structure, policies, processes and
practices within an organisation’
Neglect / Self-neglect:
• a wide range of behaviour neglecting to care for one’s
personal hygiene, health or surroundings and includes
behaviour such as hoarding
Safeguarding
Guidance
• The decision to carry out a safeguarding enquiry does
not depend on the person’s eligibility, but should be
taken wherever there is reasonable cause to think that
the person is experiencing, or is at risk of, abuse or
neglect (para 6.55)
• LAs must make enquiries, or cause another agency to
do so, whenever abuse or neglect are suspected in
relation to an adult and the LA thinks it necessary to
enable it to decide what (if any) action is needed to help
and protect the adult (para 14.77)
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Safeguarding
Could a safeguarding concern trigger a duty to meet
need?
Where a person is at risk of harm or abuse, it is important
that LAs act swiftly and put in place an effective response ..
.
If it appears to LAs that the person is experiencing, or at
risk of, abuse or neglect, they must carry out a
safeguarding enquiry and decide with the adult in question
what action, if any, is necessary and by whom (para 6.54)
Where the actions required to protect the adult can be met
by LAs, they should take appropriate action (para 6.56)
Safeguarding
Could a safeguarding concern trigger a duty to meet
need?
Effective safeguarding is about seeking to promote an
adult’s rights as well as about protecting their physical
safety and taking action to prevent the occurrence or
reoccurrence of abuse or neglect (para 7.25).
Consideration of needs should also include the extent to
which the needs or a person’s other circumstances may
mean that they are at risk of abuse or neglect. … . Where
such an enquiry leads to further specific interventions being
put in place to address a safeguarding issue, this may be
included in the care and support plan (para 10.39)
Safeguarding
Could a safeguarding concern trigger a duty to meet
need?
Human Rights obligations
In X & Y v Hounslow LBC (2009) the Court of Appeal held
no duty on LAs to protect learning disabled adults
subjected to severe abuse by third parties – but
case subject of a friendly settlement at European Court of
Human Rights – UK paying compensation of €57,000
Đorđević v. Croatia (2012) duty on state to protect learning
disabled person (and his carer) from abuse by private
parties – a positive obligation under Article 3
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Independent advocacy
sections 67 -68
• Duty to arrange independent advocate if LA considers an
individual would experience ‘substantial difficulty’ in
participating in (amongst others):
• their assessment/ preparation of care & support plan;
• a safeguarding enquiry / review
• Not apply if LA satisfied some other person who is an
appropriate representative (provided that person is not
engaged in providing care for the individual in a
professional capacity or for remuneration).
Independent advocacy
sections 67 -68
The LA considers that, were an IA not to be available, the
individual would experience substantial difficulty in—
(a) understanding relevant information;
(b) retaining that information;
(c) using or weighing that information as part of the process
of being involved;
(d) communicating the individual’s views, wishes or feelings
Key difference
• MCA 2005, s2(1) unable to make a decision … because
of an impairment of, or a disturbance in the functioning
of, the mind or brain.
Independent advocacy
For example, a person with mid-stage or advanced
dementia, significant learning disabilities, a brain injury or
mental ill health may be considered to have substantial
difficulty in communicating their views, wishes and feelings.
But equally a person with Asperger’s may be considered,
as may a frail older person who does not have any
diagnosis but is confused as a result of an infection, or a
person who is near the end of their life and appears
disengaged from involvement and decision-making.
Para 7.15
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Independent advocacy
Government:
• allocated £14.5m in 2014-15 for this service;
• advising local authorities to ‘map out which staff
need to refer people to them and ensure they
are trained to know who to refer and how to
refer’; and
• not to commission too small a service or ‘one
that is poor quality’
New statutory appeals process
section 72
Regulations to create a new appeals system
1. Flexible local proportionate system avoiding
unnecessary bureaucracy;
2. Include an element of independence from the local
authority;
3. Will seek to avoid duplication with exiting arrangements
for complaints and redress
Government will consult further and issue regulations and
guidance ‘later this year’ (ie 2014).
(Norman Lamb) 4 Feb 2014
Human Rights Protection
Section 73
Provision of regulated care or support
• Where care or support is arranged by a local authority,
or paid for (directly or indirectly, and in whole or in part)
by the authority and that care is provided by a registered
care provider to an adult or a carer either in their own
home or in care home
• Then the provider is deemed to be a public authority for
the purposes of the Human Rights Act 1998.
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s117 Mental Health Act 1983
Patients detained under:
• s3 MHA 1983
• (or a criminal provisions)
when discharged
• free after care services under s117
MHA 1983.
• Joint NHS / social services duty
s117 Mental Health Act 1983
section 75
• Currently ‘’after-care services’ are not defined
• A new subsection (5) limits services to those:
(a) ‘arising from or related to the mental disorder’ and
(b) reducing the risk of a deterioration of the person’s
mental condition (ie that may require re-admission)
• Ordinary residence clarified & dispute procedure created
Prisons
Section 76
provides welcome clarification as to local responsibilities for
prisoners who have care and support needs and provides
that the responsible local authority for ‘ordinary residence’
purposes is the one in which the prison is located
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Prisons
Section 76
LAs responsible for prisoners who have care and support
needs
Responsible LA is the one in which the prison is located
On release the prisoner will be presumed to be ordinarily
resident in the area resident immediately before the start of
their sentence
but easily rebutted (para 17.49) suggests that on release a
prisoner’s ‘ordinary residence will generally be in the
authority where they intend to live on a permanent basis’.
Prisons
All adults in custody, as well as offenders and defendants
in the community, should expect the same level of care and
support as the rest of the population. (para 17.9)’
A few Care Act entitlements not be available to prisoners –
for example the right to direct payments and to choice of
accommodation.
Where a LA is made aware that an adult in a custodial
setting may have care and support needs, then ‘they must
carry out an assessment as they would for someone in the
community’ (para 17.24)
Transitions ~ Care Act 2015
General formula
Where it appears to a LA that:
1. it is ‘likely’ that [person] will have care & support needs
after transition
2. it to be of significant benefit to be assessed;
Must assess (with consent / BI assessment)
LA must give reasons if it refuses to assess
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Transitions ~ Care Act 2015
General formula
Where it appears to a LA that:
1. it is ‘likely’ that [person] will have care & support needs
after transition
2. it to be of significant benefit to be assessed;
Must assess (with consent / BI assessment)
LA must give reasons if it refuses to assess
Transitions ~ Care Act 2015
General formula
Where it appears to a LA that:
1. it is ‘likely’ that [person] will have care & support needs
after transition
2. it to be of significant benefit to be assessed;
Must assess (with consent / BI assessment)
LA must give reasons if it refuses to assess
Transitions ~ Care Act 2015
Likely to have need
• any likely appearance of any need for care and support
as an adult’:
• not just those needs that will be deemed eligible under
the adult statute. It is highly likely that young people and
carers who are in receipt of children’s services would be
‘likely to have needs’ in this context
• LAs should carry out a transition assessment for those
who are receiving children’s services as they approach
adulthood, so that they have information about what to
expect when they become an adult.
Para 16.9
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Transitions ~ Care Act 2015
Significant benefit
• it will generally be of ‘significant benefit’ to assess ‘at the
point when their needs for care and support as an adult
can be predicted reasonably confidently, but will also
depend on a range of other factors’ para 16.6
Transitions ~ Care Act 2015
Significant benefit
• Transition assessments should take place at the right
time for the YP or carer and at a point when the LA can
be reasonably confident about what the YP’s or carer’s
needs for care or support will look like after the young
person in question turns 18. There is no set age when
young people reach this point; every young person and
their family are different, and as such, transition
assessments should take place when it is most
appropriate for them. para 16.7
• Para 16.10 checklist
Continuity of services on transition
section 66 Care Act
Complex provisions that mirror the C&F Act provision.
• Essentially if assessments of disabled children / young
carers do take place before 18 then these will either:
• continue to apply until reviewed [treated as a ‘needs
assessment under s60 Care Act 2014’]; or
• if the LA do not treat it as a continuing obligation –
then they must reassess
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Young carers
Children & Families Act 2014
s96 C & F Act 2014 amends Children Act 1989 (s17ZA)
• A Young Carer is “a person under 18 who provides or
intends to provide care for another person” (but
excluding paid / formal volunteers)
• LAs must identify the extent to which there are YCs
within their area who have needs for support
• Where the person cared for is under 18, the written
record must state whether the ‘a child in need’.
Young carers
C & F Act 2014 s17ZA (1) CA 1989)
Duty to assess YCs ‘on the appearance of need’
Draft Young Carers’ (Needs Assessments) (England)
Regulations 2015
• Assessments must consider preferences / desired
outcomes of YC and adopt a ‘whole family approach’
• Assessor has sufficient competence, knowledge, skills
and training to be able to carry out that assessment;
• Determine whether any of the caring tasks are
inappropriate and whether the needs can be met by
providing support services to—
• (i) the person cared for [by the young carer]; or
• (ii) another member of the young carer’s family .
Parent carers
C&F Act 2014 s97 [s17ZD CA 1989]
Parent carers’ needs assessments
• If it appears to a LA that a PC may have needs for support
(or is requested by a PC) then it must assess whether that
PC has needs for support and, if so, what those needs are.
• A PC assessment must include an assessment of whether
it is appropriate for the PC to provide, or continue to
provide, care for the disabled child, in the light of the PC’s
needs for support, other needs and wishes.
• A PC is an adult ‘who provides or intends to provide care
for a disabled child for whom the person has parental
responsibility’.
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Parent carers
C&F Act 2014 s17ZD CA 1989
The PC assessment must have regard to.
• the well-being of the parent carer, and
• the need to safeguard / promote welfare of DC cared for and
any other child for whom the PC has parental responsibility.
• Well-being has the same meaning as s1 Care Act 2014.
The PC assessment, must involve:
• the parent carer,
• any child for whom the parent carer has parental
responsibility, and
• any person who the parent carer requests the authority to
involve.
Parent carers
C&F Act 2014 s17ZD CA 1989
The LA must give a written record of the assessment to.
• the parent carer, and
• any person to whom the parent carer requests the
authority to give a copy.
LAs must take reasonable steps to identify the extent to
which there are parent carers within their area who have
needs for support.
Parent carers
C&F Act 2014 s17ZE / F CA 1989
Parent carers’ needs assessments
• power to make regulations concerning PC assessments
After the PC assessment the LA must decide:
(a) whether the PC has needs for support in relation to the care
which s/he provides or intends to provide;
(b) whether the disabled child cared for has needs for support;
and if so
(c) whether those needs could be satisfied (wholly or partly) by
services s17 Children Act 1989; and
(d) if so, whether to provide such services for the PC or the DC
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06/02/2015
‘Grandparent’ problem
• In relation to a disabled child – the amendment made by
the C&F Act 2014 only provides for parent’s carers;
• A PC is an adult ‘who provides or intends to provide care
for a disabled child for whom the person has parental
responsibility’.
• This excludes – grandparents; some unmarried fathers /
step fathers; other family (eg young carers who have
become ‘young adult carers, aunts etc);
• This unintended problem now partially remedied by an
announcement (4 Feb 2015) that the Carers (Recognition
and Services) Act 1995, s1 will not be repealed.
37