Careful as you go

The Care Act 2014 (CA 2014) is the most wide-reaching reform to social care law in the last 60 years. The act is intended to consolidate and modernise community care law, and implements the changes put forward in 2011 by the Commission on the Funding of Care and Support, chaired by Andrew Dilnot (see tinyurl.com/l7luod6 (pdf)). The act contains five parts. This article focuses on part 1, which concerns care and support.

Most of part 1 will come into force on 1 April 2015. However, the cap on care costs (section 15) and the provision on appeals (section 72) will both be implemented in April 2016.

Guidance, regulations and explanatory material

The ‘Care and Support Statutory Guidance’ (available at tinyurl.com/ntukysf (pdf)) is very detailed, running to almost 450 pages. Several sets of regulations (available at tinyurl.com/kjdqtrc) were published on 23 October 2014, covering a number of areas under part 1. The explanatory notes to the CA 2014 (available at tinyurl.com/pothr39) are a quick source of explanation. For a useful source of reference to pertinent passages from the pre-legislative reports and documents, see the excellent Care Act Manual by Tim Spencer-Lane (Sweet & Maxwell, first edition, September 2014). For a quick and simple explanation of the different aspects of part 1 of the CA 2014, see the Department of Health’s factsheets (available at tinyurl.com/jvqwcms).

The new general duty to promote wellbeing

Section 1 states the over-arching principle of part 1: “The general duty of a local authority, in exercising a function under this part in the case of an individual, is to promote that individual’s wellbeing.” It defines “wellbeing” and lists factors to which a local authority must have regard when exercising its functions under part 1 in the case of an individual. The structure of part 1 is similar to that of the Mental Capacity Act 2005 in this respect. The statutory guidance explains how the wellbeing principle works, alongside the shift away from fitting people into services, and towards the idea of meeting needs in a more personalised way; during the assessment process, the assessor should explicitly consider the most relevant aspects of wellbeing to the person concerned, and assess how their needs impact on them (see paragraphs 1.9-1.13 of the statutory guidance).

How useful will the wellbeing principle be? In the government’s response to the consultation on the CA 2014 draft regulations, it noted that concern has been expressed that the principle is “too abstract to be effective”. The government responded by incorporating references to the wellbeing principles in the case studies in the statutory guidance, in order to demonstrate how they function (see page 11 of the ‘Response to the consultation on draft regulations and guidance for implementation of Part 1 of the Care Act 2014’, October 2014).  

There is a very welcome passage at the end of this part of the statutory guidance (at paragraph 1.19), stating that the wellbeing principle is intended to cover the key components of “independent living” as expressed in the UK Convention on the Rights of People with Disabilities, and that supporting people to live as independently as possible, for as long as possible, is a guiding principle of the CA 2014.

The new duty to meet needs for care and support

Section 18 contains the duty to meet an adult’s needs for care and support that meet the eligibility criteria. (There are also ordinary residence criteria, and criteria concerning self-funders.) This is the principal individually enforceable duty under part 1. It replaces a number of duties to provide particular community care services to adults (sections 21(1) and (2) and 29(1) of the National Assistance Act 1948; section 2(1) of the Chronically Sick and Disabled Persons Act 1970; and section 45(1) of the Health Services and Public Health Act 1968).

Section 18 reflects the Law Commission’s proposal, in its 2011 report, ‘Adult Social Care’, that there should be one duty, based on having care needs that meet the eligibility criteria. The Law Commission had proposed that section 21 of the National Assistance Act 1948 be retained in substance as a “long-stop” for cases that did not meet the eligibility criteria. However, the government opted for “a single route through which consistent entitlement to care and support can be established” by reference to the eligibility criteria (see paragraphs 71-72 of ‘The Care Bill explained’ (May 2013, available at tinyurl.com/l6jlv9r).

In section 19, there is a power to meet needs for care and support where the adult has needs which do not meet the eligibility criteria, or their needs do meet the eligibility criteria but the person is ordinarily resident in the area of another authority. Section 19 also contains the important provision (the equivalent of sections 47(5) and 47(6) of the NHS and Community Care Act 1990) that a local authority may meet needs which appear to it to be urgent, regardless of whether the adult is ordinarily resident in its area, and without having yet carried out an assessment of needs.

What services can be provided to meet needs

Section 8 provides a non-exhaustive, illustrative list of examples of what may be provided to meet needs under sections 18-20. It reflects the aim of the legislation to allow for diversity in the ways that needs can be met (see the statutory guidance at paragraph 10.10). The list includes:

•     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; and
•     information, advice and advocacy.

Section 8 also provides examples of how a local authority may meet needs under sections 18-20: by arranging for a person other than it to provide a service; by itself providing a service; or by making direct payments.

The eligibility criteria

The eligibility criteria are key to determining who will receive community care services, including residential accommodation. No longer will local authorities decide for themselves the level of need they are prepared to meet, because there will be national eligibility criteria setting a minimum threshold for adult care and support needs (and carer support needs) which a local authority must meet. All local authorities must comply with this national threshold.

The government made it clear that it intended to set the national threshold at a level which would, in terms of practical outcome, be equivalent to “substantial” in the current system (see ‘Draft national minimum eligibility threshold for adult care and support: A discussion document’, June 2013). This is the level currently operated at by the vast majority of local authorities.

The eligibility threshold for adults with care and support needs is set out in the Care and Support (Eligibility) Regulations 2014. The criteria are formulated quite differently to the previous criteria under ‘Fair Access to Care Needs’. Three questions must be posed:

Do the adult’s needs arise from, or are they related to, a physical or mental impairment or illness (regulation 2(1)(a))?

1.  Is the adult, as a result of their needs, unable to achieve two or more of the “specified outcomes” (listed in regulation 2(2))
2. (regulation 2(1)(b))?
3. Is there, or is there likely to be a significant impact on the adult’s wellbeing as a consequence of their being unable to achieve these outcomes (regulation 2(1)(c))?

The statutory guidance steers away from a formalistic approach, and towards a broad construction of regulation 2(1)(a): “Local authorities must consider at this stage if the adult has a condition as a result of either physical, mental, sensory, learning or cognitive disabilities or illnesses, substance misuse or brain injury. The authority should base their judgment on the assessment of the adult and a formal diagnosis of the condition should not be required.”

The specified outcomes in regulation 2(2) are at the core of the new scheme. Social care will be provided to meet needs based on these outcomes:

• 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;
• 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; and
• carrying out any caring responsibilities the adult has for a child.

It is important to note the wide meaning given to “unable to achieve an outcome” in regulation 2(3).

The duty to assess

The duty to assess is in section 9 of the CA 2014. It replaces section 47(1) of the NHS and Community Care Act 1990. There is a similar low threshold to trigger the duty to assess: “It appears to a local authority that an adult may have needs for care and support.”

See also the Care and Support (Assessment) Regulations 2014 for further details of how assessments must be conducted.

Following an assessment of needs, a determination is to be made as to whether any of the needs meet the eligibility criteria. Helpfully, a local authority must give the person a written record of the determination and the reasons for it (section 13(1) and (2)).

Where at least some of the adult’s needs for care and support meet the eligibility criteria, the local authority must then consider what could be done to meet those needs that meet the eligibility criteria, and ascertain whether the adult wants to have those needs met by the local authority under the provisions of part 1 of the CA 2014, and whether the adult is ordinarily resident in the area.

The next stage is the preparation of a care and support plan (sections 24-25), in which the local authority must help the person decide how to have their needs met (section 24(1)(c)). The care plan must specify what needs are going to be met and how the local authority is going to meet them (section 25(1)). A copy of the plan must be given to the adult (section 25(9)).

If an adult refuses to be assessed, the local authority is not required to carry out an assessment, except in two situations: first, if the adult lacks capacity to consent to being assessed and the local authority is satisfied that being assessed is in their best interests; or second, if the adult is experiencing, or is at risk of, abuse or neglect (section 11).

Exception for persons subject to immigration control

The so-called ‘destitution-plus test’ is retained. Section 21(1) of the CA 2014 performs the same function as section 21(1A) of the National Assistance Act 1948, in relation to all services for meeting needs for care and support. A person to whom section 115 of the Immigration and Asylum Act 1999 applies (exclusion from benefits) will be eligible for services only so long as their need is to any material extent made more acute by some circumstance other than a lack of accommodation and funds. (The purpose of the provision is explained in the case law in this area – see, for example, R (M) v Slough Borough Council [2008] 1 WLR 1808.)

The new duties to assess carers

Section 20 of the CA 2014 sets out a new duty to meet a carer’s needs for support, and gives parity between carers and the people they support. For the first time, local authorities will be required to meet the eligible needs of carers; currently, they only have a power to do so. This duty can be met by providing support to the carer, or through the provision of support through care and support to the adult needing care. There continues to be a power to charge for services to carers, but most local authorities do not do so, in recognition of the significant contribution carers make to society.

The CA 2014 makes the threshold for a carer’s assessment the same as for a needs assessment for a person needing care and support. Local authorities have a duty to assess whether a carer has a need for support “where it appears to a local authority that a carer may have such needs currently or in the future” (section 10). There is no longer any requirement for a carer to request an assessment, or for them to provide or intend to provide a substantial amount of care. The CA 2014 places no new obligations upon local authorities to identify carers.

There is a single duty to assess, regardless of the carer’s need for support, or their financial resources or those of the person they care for (section 10(4)). The assessment must consider whether the carer is willing and able to continue to care, and have regard to whether the carer is working, training or in education, or wishes to be so. A carer has a right to an assessment, even if the person with care needs refuses an assessment. The new eligibility criteria for carers’ needs for care and support are in regulation 3 of the Care and Support (Eligibility Criteria) Regulations 2014.

Personal budgets and direct payments

The CA 2014 gives a legal entitlement to a personal budget. A personal budget is a statement of the cost of meeting eligible needs for care and support (section 26(1)). The duty to provide a personal budget applies both to those with care and support needs, and to carers.

Personal budgets will now have greater significance, given that they will set out what will count towards the cap on care costs. The budget must specify how much is attributable to daily living costs, as these do not count towards the cap on costs.

Where the local authority is required to meet needs for care and support, the adult may request that some or all of those needs shall be met by way of a direct payment. Subject to certain conditions being met (see regulation 31(3)), the local authority must comply with such a request. The statutory guidance confirms that direct payments “remain the government’s preferred mechanism for personalised care and support” (paragraph 12.1.2).

Charging and the care costs cap

The Commission on the Funding Care and Support found that the adult social care funding system in England was “not fit for purpose”, and recommended the introduction of a cap on the lifetime contribution to adult social care costs that any individual needs to make. This was intended to address the difficulties that people have when faced with the risk of very high and unpredictable care costs. Section 15 of the CA 2014 sets out that a local authority cannot charge for meeting needs under section 18 of the act if the total of the costs accrued in meeting the adult’s eligible needs (after the commencement of the section, in April 2016) exceeds the cap on care costs. The cap is to be set at £72,000, but is to be uprated annually (section 16) and reviewed every five years (section 71).

However, it is likely that an individual will incur higher costs than £72,000, as the costs cap only applies to eligible needs, and does not therefore include the costs of meeting moderate and low needs. The costs are also based on what the local authority would pay for that level of care, which is likely to be lower than what self-funders actually pay. The cap is to be introduced in April 2016, and only costs incurred after this date will count towards the cap.

Section 34 of the CA 2014 and the regulations made thereunder (the Care and Support (Deferred Payments) Regulations 2014) also require local authorities to introduce a deferred payment scheme from April 2015, with the aim that individuals will not be forced to sell their homes to pay for care in their lifetime. The cost of care will be met by local authorities, which will be repaid from the individual’s estate.

Choice of accommodation

Section 30 of the CA 2014 (and the Care and Support and After-care (Choice of Accommodation) Regulations 2014) implements the important principle, currently enshrined in the National Assistance Act 1948 (Choice of Accommodation) Directions 1992, of the right of the individual, subject to certain conditions, to be provided with their preferred residential accommodation. This will apply to care home accommodation, shared lives schemes and supported living accommodation, each of which are defined in the regulations.

The conditions for the requirement to provide the preferred accommodation include that it is suitable, available and, if it is more expensive, that the additional cost will be met by another person, or where certain conditions apply, by the adult themselves (regulations 3 and 5).

After-care services

The after-care duties under section 117 of the Mental Health Act 1983 (MHA 1983) have not been consolidated into the CA 2014, as these duties apply to a specific group of former mental health patients whose needs are directly linked to the MHA 1983 and, as they are joint duties on social services and the NHS, they would not fit easily into the new scheme. The duty to provide after-care services therefore remains as a freestanding enforceable duty, but has been more fully integrated into the adult social care framework, with the ordinary residence rules, choice of accommodation provisions and top-up payments all being extended to section 117 users. The Law Commission recommendation that it should become a gateway duty leading to services being provided under the CA 2014 (with the consequent provision that they could be charged for) was rejected, so that it remains the position that there is no right to charge for such services, save in relation to choice of accommodation. The CA 2014 provides, for the first time, a statutory definition of after-care services:

• meeting a need arising from or related to the person’s mental disorder; and
• reducing the risk of a deterioration of the person’s mental
• condition (and accordingly, reducing the risk of the person requiring admission to hospital again for treatment for mental disorder).

This definition is wider than the definition which has been adopted in case law, as it refers not only to needs arising from a mental disorder, but also to needs “related to” the mental disorder, and the second limb (referring as it does to mental condition) makes it clear that it covers more than one form of mental disorder, and is not necessarily limited to the disorder for which a person was previously detained and which gave rise to the right to after-care.

Safeguarding

The CA 2014 introduces a new statutory framework for safeguarding duties. Under section 42, a local authority must make enquiries where it has reasonable cause to suspect that an adult in its area has needs for care and support, is experiencing or is at risk of abuse (which includes financial abuse) or neglect and, as a result of those needs, is incapable of protecting themselves against the abuse or neglect, or risk of it. Local authorities will need to establish safeguarding adult boards (SABs) to investigate suspected abuse and neglect, past and present (section 43).

Appeals

It is planned that an appeals system will be introduced by regulations, from April 2016 (see the explanatory notes to the CA 2014). Many types of decisions under part 1 could potentially be subject to a new appeals system, as the regulation-making power concerns “appeals against decisions taken by a local authority in the exercise of their functions under this part in respect of an individual”. This may be of great significance, as there may well be more challenges to assessments in future, given the changes to entitlement and the knock-on effect for funding.

Prisoners

Section 76 is an important provision which clarifies that local authorities are responsible for assessing and meeting the eligible care and support needs of people in custodial settings in their areas. See also chapter 17 of the statutory guidance.

Conclusion

The CA 2014 places greater emphasis than previous legislation on prevention and putting people in control of their care and support. It remains to be seen whether the act’s aims will be realised, given the budgetary constraints on local authorities.