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The Care Act 2014 and impact on local authorities – Legal update briefing

the care act 2014 personalising care and supportSummary

The Care Act 2014 received Royal Assent and became law on14 May 2014. It will be implemented in two parts – The Care Act Part 1 was be released in April 2015 and Part 2 will be released in April 2016. The first part of the Act concentrates on updating, modernising and simplifying the system, extending current duties and creating new duties and rights. The second part of the Act focusses on the means test and funding service provision.

This briefing considers some aspects of the Care Act, (the Act) and the significant impact it will have on local authorities.

Jump to:

Practice areas affected

  • Adult Social Care practitioners and professionals working with adults and or carers.
  • Children social care professional working with young people moving from children to adult services or young carers.

Overview

care act 2014The Act is one of the most important pieces of adult social care legislation; it has been long awaited and replaces many of the previous legislation, including the National Assistance Act 1948 and the NHS and Community Care Act of 1990. The Act provides a single legal framework in the area of adult social care needs for adults and support for carers.

The Act refers to “adults” which includes those who are disabled, elderly or ill as a rest of physical or mental impairment or illness. The term “carers” is used in relation to those that are aged 18 and above, who intend to provide or already provide care for an adult, not on a contracted or on a formal voluntary basis. This is a change as the term carer is attributed to the provision of future support. Carers who are under 18 are known as “young carers”. This is new terminology and clearly recognition of the increasing numbers of young carers. And when the Act refers to an ‘individual’ it is referring to either an adult ‘in need’ or a carer.

The Act, similar to the Children Act 1989 is revolutionary, one because it is now the main statute in its area and secondly it introduces new underlying guiding principles. The first of these principles is the promotion of a person’s wellbeing (section 1) This wellbeing principle underpins the approach to care and support

New functions for Local Authorities

This can be divided into three categories.

  1. Preventative (section 2) – that is preventing the adult’s care needs from becoming more serious or delay deterioration of their needs

The Care Act 2014 - Kingsley KnightLocal authorities now have a general pro-active duty to provide a range of preventative services that they consider will:

  • contribute towards preventing or delaying the development by adults or carers in its area of needs for care and support;
  • reduce the needs for care and support of adults; and the needs for support of carers in its area.

Local authorities are advised to develop a local approach to prevention with local partners.

Arguably, this duty imposes an increased obligation on authorities firstly as it needs to find individuals whose needs are not being met, or who might be heading towards eligibility. And when considering needs local authorities should look at an individual’s life holistically. This could mean considering any care and support needs in the context of the person’s skills, ambitions and priorities.

  1. Information (section 4) – this requires local authorities to ensure that information, advice and advocacy is available in relation to care and support

This places an enhanced and active duty on local authorities to provide information and advice not to only those in need but to in fact the whole population in its area.

The information on care and support arrangements should include:

  • how the care system operates;
  • the care and support choices and providers the individual has;
  • how to access this support
  • how to raise safeguarding concerns and
  • how to access independent financial advice, which will be of considerable relevance given the choices ‘self-funders’ will have to make under the new regime.

The information must be accessible and proportionate to the person’s needs. In accordance with the Equality Act 2010 the local authority must ensure that reasonable adjustments are made so that disabled people have equal access to the information and advice services. There is a duty to provide advocacy to those who require it.

Information and advice should be provided in a variety of ways ranging from for example face to face contact, telephone, leaflets, community settings and digital forums.

Where people are not eligible for support there is an additional requirement to provide a written statement of need and offer of advice and information.

Local authorities may wish to review their existing information services for content and accessibility to ensure it is compliant.

  1. Services (section 5) – this places a duty on local authorities to promote an efficient and effective local market with a view to ensuring that there is a variety of providers offering high quality and appropriate services to choose from.

In the carrying out this duty, local authorities must ensure a successful and sustainable market exists. This may give rise to private providers the ability to object to public law decisions, on wider grounds than the familiar individual Judicial Review type challenges.

To support this duty, the Act places further obligations on public bodies to cooperate (section 6) and section 7 places a specific duty on relevant partners to assist when requested by a local authority. This fills a gap, as previously there was a duty on social services to notify housing or health bodies, if a health or housing need is identified in a community care assessment. However there was no obligation on the notified bodies to take any action. This section enables social services to request assistance from relevant partners such as the police, prisons, probation and NHS bodies and this must be provided, unless it would be “incompatible” with the notified bodies duties, or it was to have an adverse effect on the exercise of their own functions’ and in such a case the body must provide reasons for their refusal.

Who is entitled to an assessment and services? (Sections 9-13)

The Care Act - Kingsley KnightThe Act is designed to reduce confusion and simply eligibility for services by creating a single consistent route to establishing an entitlement for services.

The Act provides a shift from a local authorities being driven by a responsibility to provide services, with the focus being on the services and the organisations that provide the care to a needs led approach focussing on the well-being principle at the centre of any assessment.

The Act states that a person will be entitled to have their needs met when:

  • the adult has “eligible” needs;
  • the adult is “ordinarily resident” in the local area (which means their established home is in the assessing Local Authority’s area); and
  • any of 5 situations below apply to them.

These are the 5 situations:

  • the type of care and support they need is provided free of charge;
  • the individual cannot afford to pay the full cost of their care and support;
  • the individual asks the local authority to meet their needs;
  • the individual does not have mental capacity, and has no one else to arrange care for them; or
  • when the cap on care costs comes into force, the total care and support costs have exceeded the cap.

Eligibility criteria: creation of a national standard

The 4 bandings of care as stipulated in the statutory guidance called Fair Access to Care Services has now been replaced by standardised minimum eligibility criteria, and the same levels of needs are applied consistently across the country.

This means that local authorities will not be able to restrict their eligibility below the minimum national threshold. It also means that local authorities can continue to meet other needs that are below the minimum national threshold.”

Assessments

The trigger for assessments is “Where it appears … that an adult may have needs” and is quite low, the mere appearance of a need for support is sufficient to trigger the duty.

Therefore in order to receive an assessment there is no need for a person: –

  • to have requested an assessment; or
  • to actually have eligible needs; or
  • financial eligibility.

The assessment process starts when the local authority begins to collect information The Act sets out a detailed list of the matters to be covered in the assessment which principally relate to the earlier “well-being” provision, which brings in the following matters:

  • physical and mental health, emotional well-being and personal dignity;
  • protection from abuse and neglect;
  • control by the individual over day-to-day life;
  • participation in work, education, training or recreation;
  • social and economic well-being;
  • domestic, family and personal relationships;
  • suitability of living accommodation; and
  • the individual’s contribution to society.

The assessments must contain:

  1. the outcomes that the adult wishes to achieve;
  2. whether the provision of care and support could contribute to the achievement of those outcomes; and
  3. whether the adult’s own capabilities and any support available from friends, family or others; and any other matters, could contribute to the achievement of those outcomes.

This needs led assessment must include the impact of the adult’s needs on his wellbeing, the outcomes he wishes to achieve in day-to-day life, whether and if so to what extent the provision of services could contribute to the achievement of those outcomes, and whether there are other sources of care and support.

The adult, his carer and anyone else identified by the service user, must be consulted. For service users who lack capacity to identify who should be consulted, any person appearing to the local authority to be interested in the person’s welfare should also be consulted.

Local authorities can decline to provide support where a person already has a need met by others. So for example there is no duty to meet needs which are being met by a carer. However, if the carer were to stop meeting those needs, the local authority’s obligations would take effect.

The local authority must determine whether any of the assessed needs meet the eligibility criteria and give the adult a written record of its decision together with reasons. If at least some needs meet the criteria, the local authority must consider what could be done to meet those needs, find out whether adult wants to have those needs met by the authority, and check whether the person is ordinarily resident in their area.

In respect of carers, similar provisions apply, save that the question on ordinary residence, the issue being whether the adult is ordinarily resident in the authority’s area, not the carer.

Even where the eligibility criteria are not met, the authority must provide written advice and information about what can be done to meet or reduce the needs, and to prevent or delay the development of needs in the future.

Local authorities may require:

  • new checklists and assessment forms to ensure that all relevant matters are addressed;
  • better provision of information to service users; and
  • advocacy or other services to assist in decision-making;
  • specific guidance or tools for social work staff aimed at considering future needs and how best to prevent or delay them rather than focusing on present needs.

Meeting needs for care

Section 8 of the Act gives examples of the sorts of services that may be provided to meet assessed needs:

  • accommodation in a care home or in premises of some other type, care and support at home or in the community;
  • counselling and other types of social work, goods and facilities;
  • information, advice and advocacy.

These can be provided directly or indirectly, or through the making of direct payments. The list is not exhaustive, but is merely intended to illustrate the range of options available.

What if an adult or carer assessment is refused?

The Care Act - Kingsley KnightWhere an adult or carer refuses an assessment, the local authority will not be required to assess, subject to two exceptions:

  • where the person lacks capacity and an assessment is in their best interests; and
  • where the person is experiencing, or is at risk of, abuse or neglect.

Adults or carers are permitted to change their minds and request an assessment following a refusal, this then imposes an obligation to assess if the local authority considers that the adult’s needs or circumstances have changed Similar provisions apply in respect of carers.

Written records of assessments must be provided to the adult or carer that is subject to the assessment.

Carers

One of the significant changes in the new legislation is a focus on carers. The Act creates a new overarching duty to assess the needs of carers, which applies regardless of the local authority’s view of:

  • the level of the carer’s needs for support; or
  • the level of the carer’s financial resources or those of the adult needing care.

The duty arises where it appears that a carer may have needs for support currently or in the future. Thus, there is no longer a requirement that carers are already providing or intending to provide a substantial amount of care on a regular basis. The appearance of a need for support is sufficient to trigger the duty.

The detailed framework for a carer’s assessments brings them much closer to assessments for people in need of care and support.

Carers’ assessments must seek to establish not only the carer’s needs for support, but also the sustainability of the caring role itself, which includes both the practical and emotional support the carer provides to the adult.

Assessments & carers – Impact on local authorities

Local authorities may have to consider a review of their processes for assessing the needs of carers, and may now be required to carry out far more assessments than they currently do, in particular carers’ assessments. The Government’s own analysis estimates that there will be up to 250,000 extra carers assessments each year. In addition, more self-funders may seek assessments because of the new funding cap, which will require for self-funders be assessed and tracked annually. The Government predicts this will result in up to 230,000 additional assessments when the cap comes into force in 2016-17.

Imposing charges and assessing financial resources

Local authorities are permitted to charge for meeting needs, and in some cases, to charge for putting in place the arrangement for meeting needs.

The upper capital savings limit is currently set at £23,250. Below this level, a person can seek means-tested support from the local authority. This means that the local authority will undertake a financial assessment of the person’s assets and will make a charge based on what the person can afford to pay.

Where a person’s resources are below the lower capital limit of £14,250 they will not need to contribute to the cost of their care and support from their capital.

The local authority is not permitted to charge for certain types of care listed at 8.14 of Care and Support statutory guidance.

Authorities will have to keep a running total of accrued costs in order to ensure that these requirements are satisfied.

Cap on care costs

The power to charge is, however, subject to a new cap on care costs. If the total cost of meeting a person’s eligible needs exceeds the cap, there can be no charges imposed.

From April 2016, the Act introduces a maximum cap of £72,000 for those aged 65 and over on the long term care costs which individuals have to meet themselves during their lifetime. After this point local authority will pay. This cap on care costs maximum will be adjusted annually.

In order to keep track of the amounts people are spending, local authorities must keep a running total of all costs accrued in what is to be called a “care account”.

Accuracy in recording the “care account” will be extremely important to local authorities’ finances. There may be disputes over:

  • the true cost of items of care;
  • the frequency of reassessments, people may insist on frequent reassessments so that their care account can be increased more quickly, with alleged changes in needs.

Local authorities often obtain lower rates for placements at care homes by buying in bulk, with self-funders cross-subsidising. Where self-funders ask local authorities to commission their care home place, questions may arise as to whether they pay the local authority’s rate or the self-funder rate.

Ordinary residence (section 39)

The Act provides that if a service user has needs that can only be met in accommodation of a type specified in regulations, the adult is ordinarily resident in the place he was ordinarily resident in immediately before the placement, or if of no settled residence, the area where he was present.

If a service user moves from a ‘specified type of placement’ to another ‘specified type of placement’ then the question of ordinary residence is not revisited.

The Government introduced these provisions to close the gap in current law which meant that, in some cases, it was not clear which local authority was responsible for some types of accommodation arranged in other areas.

Next steps after assessments

The Care Act - Kingsley KnightHaving carried out a needs assessment and identified eligible needs, the local authority must prepare a care and support plan, the care plan must include:

  • the needs;
  • whether they meet the eligibility criteria;
  • which needs the authority will meet and how;
  • include a personal budget;
  • advice and information about how to meet or reduce needs; and
  • prevent or delay the development of needs.
  • If direct payments are to be made, the care plan must specify which needs they will meet, and their amount and frequency.

Continuity of care and support when adult moves

Sections 37 and 38 attempt to secure a system by which there is no interruption in care when someone moves between local authority areas. If an authority is providing services or keeping a care account in respect of a person who notifies of their intention to move, the second authority must provide the adult and carer with information about care and support services, and tell the first authority if it is satisfied the service user has a genuine intention to move.

The first authority then must provide the care plan, independent personal budget, needs assessment, care account, carer’s support plan and other relevant information to the second authority. The second authority then assesses whether the person has needs for care and support and carer support, having regard to first authority’s documents. There will now be consistency in relation to the assessment given the use of the national standardised minimum criteria. If however, the second authority’s assessment is different as regards the person’s needs or the costs of services, the authority must provide a written explanation.

Crucially, the second authority is under a duty to meet the person’s needs from the day they move, even if it hasn’t completed its own assessment. If however the service user never becomes ordinarily resident in the second authority, then the second authority can recover their costs from the first authority in due course.

Safeguarding adults at risk of abuse or neglect (sections 42-47)

The Act places on a statutory footing safeguarding obligations which previously were principally contained in the No Secrets statutory guidance.

The Act contains a new duty of enquiry:

  • where an authority has reasonable cause to suspect that an adult in its area (whether or not ordinarily resident there);
  • has needs for care and support (whether or not the authority is meeting any of those needs);
  • is experiencing or is at risk of abuse or neglect; and
  • as a result of those needs is unable to protect himself against the abuse or neglect or the risk of it.

The authority must make whatever enquiries it thinks are necessary to decide whether any action should be taken.

Abuse is stated to include financial abuse such as having money stolen, or just being put under pressure in relation to money.

Authorities must establish a Safeguarding Adults Board which may do anything to help and protect adults in its area in cases of abuse or neglect.

Children

The Act states that if a child, young carer or an adult caring for a child is likely to have needs when they, or the child they care for, turns 18, the local authority must assess them if it considers there is “significant benefit” to the individual in doing so. This is regardless of whether the child or individual currently receives any services.

The Children and Families Act 2014 creates a new ‘birth-to-25 years’ Education, Health and Care Plan (EHC) for children and young people with special educational needs, and offers families personal budgets so that they have more control over the type of support they get. In some cases, where a person is over 18, the “Care” part of the EHC plan will be provided for by adult care and support, under the Care Act.

Continuity of support for disabled children / young carers in transition (section 67)

The Act creates a duty that the assessments of disabled children / young carers that take place before the young people become 18, will either continue to apply when they become 18 until reviewed or if the local authority does not treat the assessments as a continuing obligation – then they must reassess.

Appeals

The Act permits individuals to challenge councils’ decisions by introducing a new social care appeal system. The thinking behind may have been to react to the possible increase in challenges without the need to commence Judicial Review proceedings.

Application of the Human Rights Act to private providers

The Human Rights Act (HRA) applies to all public bodies or those exercising a public function; however the question arose as to whether it applies in a case where the public authority is merely acting as commissioner at the request of a private individual.

The Act clarifies this and provides that the Human Rights Act applies to all providers of regulated care services.

Care Act BookAdditional resources

Care and Support statutory guidance, issued under the Care Act:

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/366104/43380_23902777_Care_Act_Book.pdf

Contact Us if you would like training on this subject or any other area.

Disclaimer: The material for this briefing has been designed as a briefing note and should not be relied upon or be treated as a substitute for specific legal advice.

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