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Countdown to The Care Act 2014

On 1 April 2015, the Care Act 2014 came into force, nearly one year after it received Royal Assent. The Act is undoubtedly the most important individual piece of care legislation since the National Assistance Act ushered in the welfare state in 1948. It not only replaces the earlier Act, but also most of the other connected pieces of primary and secondary legislation made since 1948.

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Probably of most immediate interest to the public at large will be Part 1 of the Act, which deals with how local authorities are to identify and assess an individual’s needs for care and support, and how the services provided will be charged for. It is worthy of note that the Act does not seek to simply “meet” care needs as under previous legislation, but urges a proactive policy of reducing present needs and preventing and delaying their development. Also of note is that the Act refers to needs for “care and support”, rather than just care.

I have summarised the main tenets of Part 1 of the Act below.

Promoting well-being (Section 1)

A local authority has a duty to promote an individual’s “well-being” in relation to numerous socio-economic and care domains. These include:

  • Personal dignity
  • Physical, mental and emotional well-being
  • Protection from abuse and neglect
  • Control by the individual over care and support provided to the individual
  • Participation in work, education, training or recreation
  • Social and economic well-being
  • Domestic, family and personal relationships
  • Accommodation
  • Contribution to society

In exercising this duty, the local authority must have regard to a number of factors or assumptions concerning the individual. It is of note that some of these factors borrow from those parts of the Mental Capacity Act 2005 concerned with promoting the individual’s “best interests” and, importantly, they also echo the tenor and ideology of the UN Convention on the Rights of Persons with Disabilities 2008. The factors are:

  • The assumption that the individual is best-placed to judge the individual’s well-being
  • The individual’s views, wishes, feelings and beliefs
  • The prevention or delay of the developing of needs for care and support and the reduction of present needs
  • Decisions about an individual are not based on factors such as age, appearance or any condition that might lead to unjustified assumptions about their well-being
  • Allowing and supporting the individual to participate as fully as possible in the decision-making process
  • Balancing the well-being of the individual and the friends or family involved in their care
  • Protection of the individual from abuse and neglect
  • A “least restrictive” approach to any infringement of the individual’s rights and freedoms

Preventing needs (Section 2)

A local authority must provide or arrange the provision of services that it considers will (i) contribute to preventing or delaying the development of care needs by individuals and their carers, (ii) reduce the care needs of individuals and their carers. The Act states that regulations may permit a local authority to charge for providing or arranging the provision of these services, or, conversely, may prohibit it from so charging. We will return to this aspect further on.

The “needs assessment” (Section 9)

Where it appears that an individual may have needs for care and support, a local authority must assess whether they do in fact have such needs and, if so, what they are. The duty to carry out this needs assessment applies regardless of the local authority’s view of the level of the individual’s needs or the level of the individual’s finances.

The needs assessment must assess (i) the impact of the individual’s needs on the “well-being” domains in Section 1, listed above, (ii) the outcomes that the individual wishes to achieve, and (iii) the extent to which the provision of services could contribute to the achievement of those outcomes.

In carrying out the needs assessment, a local authority must involve the individual, their carers and any other person the individual has the authority to involve or, where the individual lacks capacity, any person who appears interested in the individual’s welfare.

Finally, a local authority must also consider whether “matters other than the provision of care and support” could contribute to the achievement of the individual’s desired outcomes. These “matters” include written information and advice about care and support and “anything which might be available in the community”. Thus, in short, if appropriate, a local authority may refer the individual on instead of providing or arranging the services and support itself.

A written copy of the needs assessment must be given to the individual, their carer and any other authorised person.

The “carer’s assessment” (Section 10)

There is also a duty for a local authority to carry out a carer’s assessment. The wording largely mirrors that of the needs assessment, but there are two matters of note. Firstly, a person is not to be regarded as a carer where the care is provided under a contract or on a voluntary basis (but a local authority can ignore this provision in appropriate circumstances). Secondly, the provision of care in this section can include the provision of practical or emotional support.

A written copy of the carer’s assessment must be given to the carer, the individual needing care and any other authorised person.

Further provisions (Section 12)

The Act provides that separate regulations must make further provision concerning the needs assessment and the carer’s assessment. These were laid before parliament on 23 October 2014, in the form of The Care and Support (Assessment) Regulations 2014. The main points of interest are:

Supported self-assessment

A supported self-assessment is an assessment carried out jointly by the local authority and the individual concerned. A local authority carrying out an assessment must ascertain whether the individual wishes the assessment to be a supported self-assessment.

General requirements

The assessment must be carried out in an appropriate and proportionate manner, having regard to the wishes and preferences of the individual, the outcomes sought by the individual and the severity and overall extent of the individual’s needs. Where the individual’s needs fluctuate, the assessment should take place over an appropriate period of time.

Impact on family

A local authority must consider the impact of the individual’s needs on their carer and any person the local authority considers to be relevant.

Expertise of the assessor

A local authority must ensure that the person carrying out the assessment has the skills, knowledge and competence to carry out the assessment in question and is appropriately trained. Additionally, a local authority must consult a person who has expertise in relation to the individual’s condition or circumstances. Such consultation may take place before or during the assessment.

Needs: eligibility criteria (Section 13)

Now we come to the nub of it. Sections 1 and 2 sound, in theory, grand and progressive, but Section 13 adds another layer. Where, following an assessment (needs or carer’s), a local authority is satisfied that an individual has needs for care and support, it must determine whether any of the needs meet the eligibility criteria.

Where at least some of the needs meet the criteria, the local authority must (i) consider what could be done to meet the needs that do, and (ii) ascertain whether the individual wants those needs met by the local authority.

Where none of the needs meet the criteria, the local authority must give the individual written advice and information about what can be done to (i) meet or reduce the needs, and (ii) prevent or delay the development of needs.

In any event, the individual must be given a written record of the determination.

The eligibility criteria are contained in The Care and Support (Eligibility Criteria) Regulations 2014. The main points of interest are:

Needs which meet the criteria

An individual’s needs meet the eligibility criteria if (i) the needs arise from, or are related to, “a physical or mental impairment or illness”, (ii) as a result of those needs, the individual is unable to achieve two or more of the outcomes specified below, and (iii) as a consequence there is, or likely to be, a significant impact on the individual’s well-being The specified outcomes are:

  • Managing and maintaining nutrition
  • Maintaining personal hygiene
  • Managing toilet needs
  • Being appropriately clothed
  • Being able to make use of the home safely
  • Maintaining a habitable home environment
  • Developing and maintaining family or other personal relationships
  • Accessing and engaging in work, training, education or volunteering
  • Making use of necessary facilities or services in the local community including public transport and recreational facilities or services
  • Carrying out any caring responsibilities the individual has for a child

For the purposes of (ii) above, an individual is to be regarded as being unable to achieve an outcome if the individual is:

  • Unable to achieve it without assistance
  • Able to achieve it without assistance, but doing so causes significant pain, distress or anxiety
  • Able to achieve it without assistance, but doing so endangers, or is likely to endanger, the health or safety of the adult or others
  • Able to achieve it without assistance, but takes significantly longer than would normally be expected

Where the level of needs fluctuates, the individual’s circumstances must be taken into account over a period of time.

Predictably, these specified outcomes are a lot narrower than the well-being domains in Section 1 of the Act.

Duty to meet needs for care and support (Section 18)

A local authority must meet an individual’s needs for care and support that meet the eligibility criteria in Section 13. This applies both where an individual’s financial resources are below the financial limit and where those resources are above the financial limit but the individual nonetheless asks the local authority to meet their needs. Note that this duty does not apply to such of the individual’s needs as are being met by a carer.

Power to meet needs for care and support (Section 19)

A local authority may meet an individual’s needs that do not meet the eligibility criteria. It may also meet those needs that are urgent and where the local authority has not carried out a needs assessment or financial assessment.

Section 20 deals with a local authority’s duty and power to meet carers’ needs.

Charging and assessing financial resources (Section 14)

Prior to the Act, there were separate charging regimes for care provided in a care home setting and domiciliary care provided at home. Charging for care provided in a care home was mandatory and was governed by the National Assistance (Assessment of Resources) Regulations and the annually published guidance in CRAG (Charging for Residential Accommodation Guide). Charging for care provided at home was discretionary and governed by section 17 of the Health and Social Services and Social Security Adjudications Act 1983 and the Department of Health’s guidance in Fairer Charging Policies for Home Care and other non-residential Social Services 2013. Although charging was discretionary, by and large, all local authorities did charge, predictably with little consistency as to how each of them did it.

Under the Care Act, A local authority may make a charge for providing or arranging care and support to an individual under Sections 18 to 20. The relevant regulations are The Care and Support (Charging and Assessment of Resources) Regulations 2014.