ANUARA ALI & MARY-ANNE ANARADOH
Senior Lawyers
Islington Council
8 January 2015
1

Slide taken from Skills for
Care
Part 1 of the Care Act and its statutory guidance
Who’s it for?
 Adult social care as well as wider elements of local authorities
 Health and other local authority partner organisations
 Social care provider and support organisations in all sectors
 Those involved in the governance of these organisations and people who work, care, support and volunteer in them
 Professionals and practitioners
What might you learn?
 The basic framework of the Act and its key components
 The core principles behind the Act and what it is intended to deliver
 Some implications of the Act and key changes
2

3

“ An Act to make provision to reform the law relating to care and support for adults and the law relating to support for carers; to make provision about safeguarding adults from abuse , to establish and make provision about Health Education England; to establish and make provision about the Health
Research Authority; to make provision about integrating care and support with health services ; and for connected purposes” [14 May 2014] – Preamble to the Care Act 2014
4

• The Care Bill was announced in the Queen’s Speech on 8 May 2013;
• It is based on the draft Care and Support Bill published by the Department of Health on 11 July
2011 which implemented the recommendations set out in the Law Commission’s final report following completion of its three year review of adult social care;

6

National
Assistance Act
1948
NHS and
Community
Care Act 1990
Slide taken from Skills for
Care
Community Care
(Direct
Payments) Act
1996
1948 1960… 1970… 1980... 1990… 2000… 2010…
Chronically Sick and Disabled
Person Act 1970
Carers
(Recognition and
Services) Act
1995
7

The Act therefore:
• Creates a clear, modern and cohesive legal framework for adult social care in the form of a single statute that will be simpler and easier to understand;
• Implements the Government’s commitment to reform social care legislation in the White Paper Caring for our future: reforming care and support (July 2012 ). The White Paper sets out the
Government’s vision for a modern system of social care that promotes individuals’ wellbeing by enabling them to prevent and postpone the need for care and support and to pursue education, employment and other opportunities to realise their potential.

• Implements the changes recommended by the Dilnot
Commission on the Funding of Care and Support by introducing a cap on the costs that people will have to pay for their care;
• Creates new duties for local authorities; however some of these new in law but not new in policy e.g. duty to prepare care and support plans, review of care and support plans, provision of personal budgets). As such impact of these duties will depend on local practice;
• Contains elements of the Government’s response to the
Mid -Staffordshire NHS Foundation Trust Public Enquiry and it establishes Health Education England and the
Health Research Authority as non-departmental public bodies

14 May 2014 The Care Act 2014 received Royal Assent i.e. became law
15 October 2014 The Regulations and statutory guidance are published
1 April 2015 Care Act 2014, Part 1 provisions on care and support (excluding funding reforms), and
Regulations come into effect
1 April 2016 Care Act 2014, Part 1 funding reform provisions come into effect i.e. cap on care costs, care accounts, extended means test.
10

Slide taken from Skills for
Care
Primary legislation – the Care Act 2014
Legal duties and powers
Secondary legislation – the regulations
More detail on critical requirements
Statutory guidance
Guidance on how to meet the legal obligations in the Act
Implementation support
Best practice guidance, toolkits and other products that help support implementation
1
1

Underpinning principle
Wellbeing
Slide taken from Skills for
Care
General responsibilities and key duties
Key processes
Prevention Assessment and eligibility
Integration, partnerships and transitions
Charging and financial assessment
Information, advice and Care and support advocacy planning
Diversity of provision and market oversight
Personal budgets and direct payments
Safeguarding
Review
1
2

Part 1 of Care
Act 2014
EXCEPT THE
FOLLOWING;
Section
15(Cap on
Care Costs),
Section16
(Cap on Care
Costs: annual adjustment),
Section 28
(Independent
Personal
Budget),
Section 29
(Care account)
Section 72
(Part 1
Appeals)
In force
April 2015
In force
April 2016
In force
April 2016
In force
April 2016
In force
April 2016
In force
April 2016
13

14

Principles –
Centre of
Legislation
15

participation in work, education training or recreation protection from abuse and neglect; control by the individual over day to day life (including over care and support, or support, provided to the individual and the way in which it is provided); personal dignity
(including treatment of the individual with respect); social and economic wellbeing; physical and mental health, emotional wellbeing; the individual's contribution to society domestic, family and personal relationships; suitability of living accommodation
;
Chapter 1 of Care and Support Statutory Guidance –
Promoting Wellbeing
16

Carries ‘indirect legal weight’, where a LA’s failure to follow the principle may be challenged through judicial review.
For example, if an adult argues he is not being provided with services that meet his needs, well-being principle will be considered and whether there has been a breach.
A failure to have proper regard is challengeable in judicial review;
LA’s should explain how they have had regard to the list and reasons for departure.
Applies to adults, their carers, also applies to children, their carers and to young carers
17

Developed in Case Law – Article 3 & 8
ECHR. In R (A) v East Sussex CC [2003]
EWHC 167, Mr Justice Munby described dignity as;
The core value of our society
Severely disabled people are entitled ‘to an enhanced degree of protection’
Art 8 rights of disabled people to participate in the life of the community and to have ‘access to essential economic and social activities and to an appropriate range of recreational and cultural activities’
Positive obligation on state to ensure that disabled person is given an opportunity to develop his personality .
18

For example access to leisure activities, counselling.
For example access to leisure activities, counselling Emotional well-being is far reaching and includes consideration of pets (as confirmed by Government in
House of Lords.)
Includes Spiritual Well-being which would bring in religious values
19

The principle of choice and control over care and support are evident in many areas such as joint selfassessments s.12(1)(e), care and support plan (s.25 (2) personal budgets (s.26), the choice of accommodation (s.30) direct payments (s.31 to s.33)
The wishes and preferences of a person, while not being binding is a relevant consideration that must be taken into account and any care and support planning; failure to consider their wishes and feelings would render an assessment unlawful and
LA would fall foul of this principle. If the preference formed part of their needs, then the preference must be met as it is a need.
20

Also a right of Article 8 ECHR
R (Bernard) v Enfield LBC [2002]
EWHC 2282 Facts: A severely disabled woman and her husband carer. Her house was inaccessible to wheelchair use and not adapted to her needs. Council’s failure to provide a home that was suitable adapted was incompatible with
Article 8
Independent living is also core part of well-being as expressed in the UN
Convention on the Rights of People with Disabilities i.e. supporting people to live as independently as possible.
21

•
•
•
22

 Express duties on LAs and their relevant partners to cooperate generally in exercising their care and support functions (section 6).
 Section 6 (4) provides for co-operation between local authority departments, adult social services, housing, children’s services and health.
 Section 6 (7) Care Act specifies ‘relevant partners’ as;
• Other LAs within the area;
• Any other LA which it is appropriate to co-operate;
• NHS bodies
• DWP
• Police
• Prisons and Probations services.
23

Slide taken from Skills for
Care
 NHS Reorganisation Act 1973
 The New NHS: Modern, Dependable 1997
 Health Act 1999
 Independence Wellbeing and Choice 2005
 National Health Service Act 2006
 Health and Social Care Act 2012
Slide taken from Skills for Care
24

 Improves the service user experience
 Eliminates duplication
 Streamlines care pathways
 Early intervention and prevention
 Improves safeguarding
Slide taken from Skills for Care
25

 Integration : The combined set of methods, processes and models that seek to bring about improved coordination of care
 Cooperation : Public organisations working in partnership to ensure a focus on the care and support and health and health-related needs of their local population
 Partnership : A joint working arrangement where the partners: are otherwise independent bodies; agree to co-operate to achieve a common goal; create a new organisational structure or process to achieve this goal; plan and implement a joint programme; share information, risks and rewards
Slide taken from
Skills for Care
26

Sections 3, 6, 7 and 43 of the Act require that:
3.
“A local authority must exercise its functions under this Part with a view to ensuring the integration of care and support provision with health provision and health-related provision”
6.
“A local authority must co-operate with each of its relevant partners, and each relevant partner must co-operate with the authority, in the exercise of their functions relating to adults and carers”
7.
“Local authorities and their partners must co-operate where this is needed in the case of specific individuals who have care and support needs”
43.
“Each local authority must establish a Safeguarding Adults Board
(SAB) for its area... The way in which a SAB must seek to achieve its objective is by co-ordinating and ensuring the effectiveness of what each of its members does.”
27
Slide taken from Skills for Care

 This duty applies where the local authority considers that the integration of services will:
 “promote the wellbeing of adults with care and support needs or of carers in its area;”
 “contribute to the prevention or delay of the development by adults in its area of needs for care and support or the development by carers in its area of needs for support, or ;”
 “improve the quality of care and support for adults, and of support for carers, provided in its area (including the outcomes that are achieved from such provision).”
28
Slide taken from Skills for Care

 The Health and Social Care Act 2012 (Sections 13N and 14Z1) also states that the NHS also has a duty to promote and secure integrated care where it will improve the quality of services, and reduce inequalities in accessing services or improve outcomes.
Slide taken from Skills for
Care
29

1.
Promoting wellbeing
2.
Improving the quality of care (including the outcomes from such provision)
3.
Smoothing the transition from children’s to adults’ services
4.
Ensuring agencies work effectively together to safeguard adults at risk of abuse or neglect
5.
Reviewing and learning lessons from cases where adults have experienced abuse or neglect
Slide taken from Skills for
Care
30

District
Councils
Other authorities
Local authorities CCGs
Others
Cooperation
Health
NHS
England
Hospital trusts
Prisons and probation
DWP
Police
Slide taken from Skills for Care
31

 The general principle is one of cooperation in the day to day delivery of care
 But there might be a need for cooperation, in the case of individuals, which goes beyond the general requirement
 If specific cooperation is requested, either from the local authority or by the local authority, the partner organisation must respond unless it is incompatible with their own functions and duties
 A person or agency must comply with a request for information from a
Safeguarding Adults Board under certain conditions regarding issues involving a safeguarding case
32
Slide taken from Skills for
Care

 Integration and cooperation must be delivered in the context of improving care and support, in line with the duty to promote wellbeing, prevent or delay the development of needs and improve the quality of care
 There is a reciprocal duty placed on the NHS, specifically any NHS body within the authority’s area including Clinical Commissioning
Groups, hospital trusts and NHS England
Slide taken from Skills for Care
33

 S,21 & S.22 – contains boundaries of co-operation;
 Local authorities have a duty to meet eligible needs for care and support
 Local authorities have a duty to make enquiries in cases of abuse
 But there are restrictions on what they can provide in terms of health care, for example:
 Nursing care provided by registered nurses
 NHS Continuing Healthcare funded care
 All partners need to be clear about their own responsibilities, and how they fit together
Slide taken from Skills for
Care
34

 Suitable living accommodation is a key ingredient in promoting physical and emotional health and wellbeing
 Housing can also prevent or delay care needs from arising; as well as support existing needs
 Local authorities must provide information and advice on care and support and this must include housing services
 Local authorities are not expected to provide all housing services but should “make effective use” of other statutory, voluntary and private resources
Slide taken from Skills for Care
35

 The wellbeing principle includes participation in work, training and education and as such local authorities must consider this as part of their care and support functions
 Local authorities must:
 Consider the links between care and support, employment and welfare when planning and commissioning
 Ensure good quality information and advice including eligibility for benefits, disability benefits and employment support
 Consider education, training and support when working with individuals
Slide taken from Skills for Care
36

 Joint information and advice service - based around the needs of the end user rather than around individual services or structures
 Integrated assessment processes
 “Care co-ordinators”
 Integrating assessment and care planning for carers
The statutory guidance suggests that an integrated approach can most fruitfully be taken by having a joint information and advice service (covering health, care and housing) which links assessments with advice and information on, among other issues, housing and finance.
This may include integrating an assessment with information and advice about housing, care and related finance to help develop a care plan (if necessary), and understand housing choices reflecting the person’s strengths and capabilities to help achieve their desired outcomes.
There may be occasions where a housing staff member knows the person best, and with their agreement may be able to contribute to the assessment process or provide information.
An integrated assessment process covering health, social care and housing needs will allow for a clearer picture of the person’s needs holistically, and for a single point of contact with the person to promote consistency of experience, so that provision of different types of support can be aligned.
Slide taken from Skills for
Care
37

Integrating service delivery
Care and repair
Occupational therapy
District nursing
Physiotherapy
Reablement
Community alarm service
Assistive technology
Home
Care
The need to integrate provision to help keep people within the community
38
Slide taken from Skills for Care

•
39

Prevent;
Primary
Prevention
Reduce;
Secondary
Prevention
Delay; Tertiary
Prevention
Aimed at individuals who have no current care needs e.g.
Leisure Activities,
Healthy Lifestyles
Aimed at individuals with increased risk of developing needs e.g. fall prevention clinic, handymen services
Aimed at individuals with established or complex health conditions such as dementia e.g. reablement /rehabilitation services
Applies to everyone – including those adults who do not have needs for care and support;
Carers who are about to take on the role
40
The Care and Support (Preventing Needs for Care and Support) Regulations 2014

LA should develop local approach to preventative support – a plan of how they will provide and arrange for these services
This plan must be a work in progress; LA must take steps to understand current and future demand for preventative services .
Some types of preventative services can be provided in partnership with other local partners e.g. rehabilitation or fall clinics provided with the NHS
An LA should engage local providers in this duty.
The Care and Support
(Charging and
Assessment of
Resources)
Regulations 2014;
Where a LA chooses to charge for a particular service, it should consider how to balance affordability and viability of the activity.
In any case, LA must not charge more than it costs to provide or arrange this.
Regulations say that intermediate and reablement up to 6 weeks (all adults) and minor adaptations up to value of £1,000 must always be provided free of charge.
41

•
42

LA has a duty to establish and maintain a service for providing people in its area with information and advice relating to care and support for adults and carers
LA must take an active role in this duty; should go further than merely providing information and advice; ensure coherence, sufficiency, availability and accessibility of advice too.
Chapter 3 of Guidance
; Information and
Advice
Can achieve this duty through joint working i.e. joint information on housing options and accommodation options available; information leaflets detailing how to raise concerns about safety or well-being of an adult.
Applies to everyone in the LA’s area
Where a LA recognise services should be given independent and impartial advice or by independent providers
43

 Information and advice is fundamental to enabling people to take control of, and make well-informed choices about, their care and support and how they fund it
 Not only does information and advice help to promote people’s wellbeing by increasing their ability to exercise choice and control, it is also a vital component of preventing or delaying people’s need for care and support
 It is an essential building block of the Care Act reforms
Slide Taken from Skills for Care
4
4

The care and support system locally
How to raise concerns about the safety or wellbeing of an adult
How to access independent financial advice
How to access the care and support available locally
What information should be provided?
The choice of types of care and support, and the choice of care providers
45

Self-help information
Websites, leaflets, NHS
Choices etc
No interaction
Assisted information
Telephone helplines, directories, libraries, one stop shops,
CAB, charities, information centres, GPs, frontline staff etc
Limited to moderate interaction
Advice
Telephone lines, information centres, one stop shops,
CAB, support groups, carers centres, CIL, social workers,
GPs, outreach staff/workers etc
Specialist advice and advocacy
Independent financial advisers, legal help on complex matters in specific areas of law, independent advocates
Moderate to high interaction
High interaction
Slide Taken from Skills for Care
4
6

1.
The social care system is too complex and localised to comprehend
2.
Decisions are typically taken in a crisis
3.
There are problems with the quality and availability of information, advice and referral
4.
The availability and quality of council information services and assessments is patchy
5.
There is a lack of independent support for the assessment process
6.
There is a lack of joined-up advice covering care and housing/benefits options
7.
There is a lack of information about service availability and quality
8.
There is a lack of signposting to financial advice
Advice and information needs in adult social care . Think Local, Act Personal 2013
Slide Taken from Skills for Care
4
7

Slide taken from Skills for
Care
• Section 4 of the Care Act places a duty on local authorities to ensure the availability of information and advice services for all people in its area, regardless of whether or not they have eligible care needs
 A wide definition including care and support related aspects of health, housing, benefits, and employment
4
8

Slide taken from Skills for
Care
 Local authorities do not have to provide all elements of this service
 They are expected to:
 Understand, coordinate and make effective use of all the information and advice resources that are available
 Think about how they are reaching out and joining up with other providers of information and advice to ensure the coherence of the overall ‘offer’
 Signpost or refer people to relevant independent and impartial sources of information and advice
4
9

 The local authority must provide financial information and advice, including:
 understanding care charges
 ways to pay
 money management
 As well as identifying those who may benefit from independent financial advice or information and help them to access it
 Broader awareness raising about how care and support is funded
Slide Taken from Skills for
Care
5
0

Transitioning to adulthood
Slide taken from Skills for
Care
Subject to safeguarding concerns
Wanting to plan for their future
Who contact the local authority
People
Who are family members or carers Who may develop care and support needs in the future
In prison
Who are assessed as being in need of care and support
51

Slide taken from Skills for
Care
 Self funders often not well served for information and advice by many councils in the past:
 many do not seek help
 while those that do find little information was offered and that signposting to other sources of support was a negative experience
The Barriers to Choice
Review
5
2

 On contact with the care and support system
 Targeted at key ‘trigger points’ in people’s lives
Slide taken from Skills for
Care
5
3

 Information and advice must be open to everyone who would benefit from it. They authority should ensure that:
 There are a range of delivery mechanisms that are accurate and up-to-date
 Staff are aware of accessibility issues and appropriately trained
 Websites meet accessibility standards
 Printed materials are clear and in plain English
 Materials are adapted as necessary e.g. easy read versions and translations
 Help from independent person is available to help people access information and advice
54

Slide taken from Skills for
Care
“Information and advice should only be judged as clear if it is understood and able to be acted upon by the individual receiving it.”
 Local authorities will need to check that information and advice is understood and able to be acted upon:
 Check understanding
 Check impact
“I couldn’t find any information on local services.
I just got gobbledegook from the phone .”
5
5

Slide taken from Skills for
Care
Coproduction
Impact
Develop and implement a strategy/ plan
Mapping
Coordination
5
6

Slide taken from Skills for
Care
1.
Involve people who use services and carers in determining what is needed and how it is provided
2.
Be available at the right time for people who need it, in a range of accessible formats and through a range of channels
3.
Meet the needs of everyone in the community served
4.
Be clear, comprehensive and impartial
5.
Be consistent, accurate and up-to-date
6.
Meet quality standards
7.
Be based on a detailed analysis of the needs of the local population
8.
Be commissioned in tandem with other relevant support and advocacy services
9.
Avoid reinventing the wheel
10.
Signpost people to sources of further information
11.
Be used to inform future planning
Principles for the provision of information and advice (TLAP 2013)
5
7

 Section 5 requires local authorities to promote the efficient and effective operation of a market in services for meeting care and support needs with a view to ensuring that any person wishes to access such services;
 has a variety of providers to choose from who provide a variety of services;
 has a variety of high quality services to choose from;
 has sufficient information to make an informed decisions about how to meet the needs in question.
58

•
59

Under Section 67 (2), an LA must arrange for involvement of an advocate to support the individual for the purpose of facilitating the individual’s involvement if the adult would experience substantial difficulty in doing one or more of the following —
• understanding relevant information;
• retaining that information;
• using or weighing that information as part of the process of being involved;
• communicating the individual’s views, wishes or feelings.
 The above test is NOT the same as the test contained in the
MCA.
 An advocate should be from where the adult is resident NOT ordinarily resident.
 Practice Point – LA should have policy in relation to use of advocates outside of borough.
60

Care
Assessment
Young
Carers
Assessment
Carers
Assessment
Child’s
Needs
Assessment
(Transition)
Independent
Advocates need to be involved in all of these activities
Safeguarding
Enquiries /
Safeguarding
Adult Reviews
Preparation of care and support plan
Review Care and Support
Plan
61

• LA does not need to instruct an advocate if the local authority is satisfied that there is a person;
• who would be an appropriate person to represent and support the individual for the purpose of facilitating the individual’s involvement.
 Potential disputes about suitability of family members – can preclude difficult family members.
 It is ultimately for the LA to decide who is suitable. Must explain to family members why
LA considers them not suitable.
62

A person who has a vested interest
A paid carer
(including those in receipt of direct payments)
A person who lives at a distance / occasional contact
Non Exhaustive List
Housebound parent
A person who does not understand the LA procedure
Anyone the adult does not wish to be involved
A person who has strong views and wishes
63

Might this person have difficulty in being involved?
Yes
Can they be better supported to enable their involvement?
[Reasonable adjustments under the
Equality Act 2010]
Yes
Slide taken from Skills for
Care
 Provide support and make adjustments
Do they still have
‘substantial difficulty’ in being involved?
Yes
Is there an
‘appropriate individual’ – a carer, friend or relative – that can facilitate their involvement?
Yes
No
 Agree
‘appropriate individual’
 Duty to arrange for independent advocate
64

Does the adult / carer
Yes have capacity to consent to a person being involved in the assessment / care and support planning / review process?
No
Involve any person who appears to be interested in the adult’s welfare during the process (wider test) AND must have regard to the best interests of the individual as per
Mental Capacity Act
2005 for any decisions which need to be made. Appoint an
IMCA/Independent
Advocate if no person available
Yes
This person may be used to support the adult / carer in the process?
No
No requirement to involve an advocate
Yes
Is there anyone appropriate to support the adult /carer in the process?
No
Appoint an independent advocate to support the adult / carer in the process.
65

Considerations
• Who is appropriate to support and represent the person?
• Is a family member or friend an appropriate individual?
Must
• Be able to facilitate the individual’s active involvement with the process
• The person who is supported must agree to the suggested
‘appropriate individual’
Slide taken from Skills for
Care
Must NOT
• Be someone who is already providing care or treatment professionally or paid
6
6

Slide taken from Skills for
Care
 Advocates should represent the individual, always with regard to their wellbeing and interests, including helping a person to:
 Understand the process
 Communicate their wishes, views and feelings
 Make decisions and challenge those made by the authority
 Challenge a decision made by the local authority
 Understand their rights
 Support and represent them in the safeguarding process
 Look at records and to talk to those who can help
 Consult both the records and the family and others if the person does not have capacity
6
7

Slide taken from Skills for
Care
Advocate has concerns
Must write a report outlining their concerns
Local authority should convene a meeting and provide a written response
6
8

Slide taken from Skills for
Care
 Independent advocates must have:
 a suitable level of experience
 appropriate training
 competency in the task
 integrity and good character
 the ability to work independently of the authority
 arrangements for regular supervision
6
9

Slide taken from Skills for
Care
 All relevant people involved in the key care and support planning processes, and all independent advocates, are expected to understand and apply the Mental Capacity Act
 They must be able to:
 evidence that they are using the MCA principles
 understand supported decision making; and the importance of considering least restrictive interventions
 understand how capacity assessments are made; how best interests decisions are made, and what a deprivation of liberty is
 They are expected to have some knowledge of relevant case law and key messages from the Court of Protection
7
0

Slide taken from Skills for
Care
 The Mental Capacity Act gives some people who lack capacity to make a specific decision a right to receive support from an Independent
Mental Capacity Advocate (IMCA)
 IMCA services are provided by organisations that are independent from the NHS and local authorities
 An IMCA safeguards the rights of people who are facing a decision about change in long-term accommodation, and serious medical treatment decisions, and lack capacity to make a specified decision (at the time it needs to be made), and have nobody else who is willing and able to represent them or be consulted
 IMCAs must have: specific experience; IMCA training; integrity and a good character; and be able to act independently
7
1

Slide taken from Skills for
Care
 There are similarities with the MCA, but the duty to provide independent advocacy under the Care Act is broader and applies to a wider set of circumstances e.g. it provides support both to people who have capacity but who have substantial difficulty in being involved and to those who lack capacity
 The local authority must meet its duties in relation to working with an
Independent Mental Capacity Advocate and those in relation to an independent advocate under the Care Act
 The same advocate can provide support as an independent advocate under the Care Act and under the Mental Capacity Act, if trained and qualified to do both
 There are many advantages of having one independent advocate, or one organisation, providing both services
7
2

Slide taken from Skills for
Care
 From the first point of contact, and at any subsequent stage of the assessment, the identification of a potential need for independent advocacy may arise from the person themselves, carers or family or others
 Consideration of whether a person has substantial difficulty in involvement applies throughout any subsequent part of the care and support planning and review processes
 The local authority must consider whether there is anyone appropriate who can facilitate the person’s involvement, and if not, arrange for an independent advocate
 There is also a separate duty to arrange an independent advocate for adults who are subject to a safeguarding enquiry or safeguarding adults review
7
3

Slide taken from Skills for
Care
 There are times when an independent advocate should be provided even where the person has family or others involved. These are:
 when it is suspected that the family member or other person is abusing the adult
 when a placement is being considered in NHS-funded provision and the local authority believes that it would be in the best interests of the individual to arrange an independent advocate
 where there is a disagreement between the local authority and the person who would facilitate the individual’s involvement, and they both agree that an independent advocate would be beneficial to the individual
7
4

•
75

 Section 9 identifies that an LA must carry out an assessment where it appears that an adult may have needs for care and attention, the authority must assess that person and if they do have needs, they must identify what those needs are. Replaces and replicated s.47
NHS and CC Act 1990.
 The needs assessment must include the impact of the adult’s needs for care and assessment on the matters specified in the well-being principle contained in section 1 (2) of the Care Act 2014 – the LA must consider the impact on the adult’s desired outcomes.
 Contained in Chapter 6 of the Guidance.
Practice Point – LA must accordingly review their forms in line with these changes and must also have different formats such as self supported assessment format
76

Slide taken from Skills for
Care
 Assessment is both a key process AND a critical intervention
 An assessment should identify:
 care and support needs
 what outcomes the individual is looking to achieve to maintain or improve their wellbeing
 how care and support might help in achieving those outcomes
77

Relevant agencies work together to avoid the person undergoing multiple assessments.
Face to face
Assessment
Between the person and an appropriately qualified i.e. An adult’s assessment is combined with a carer’s assessment and/or a child assessment.
A combined assessment assessor
 Must be appropriate and proportionate
-
 Person Centred
 Collaborative
Process
 Transparent
 Non exhaustive / not limited
Supported
Self –
Assessment
The person completes the assessment themselves and the local authority assures itself that it is an accurate reflection of the person’s needs. Not suitable for those lack capacity.
Joint
Assessment
On-line /
Phone
Assessment
Less complex needs or where the person already known to the local authority
78

Slide taken from Skills for
Care
 All of the agencies involved should work closely together to prevent a person having to undergo a number of assessments at different times
 To achieve this local authorities should:
 ensure healthcare professionals’ views and expertise are taken into account
 work with healthcare professionals to ensure people’s health and care services are aligned and set out in a single care and support plan
 In cases of abuse, the local authority should lead the assessment and ensure that all agencies follow the local multi-agency procedures to ensure coordination of information and possible evidence
79

Slide taken from Skills for
 The local authority must offer the individual the choice of a
Care supported self-assessment if they are able and willing.
 The person should be asked to complete the same assessment questionnaire that the authority uses in their needs or carer’s assessments
 The individual must have capacity to fully assess and reflect their own needs
 The local authority must assure itself that the person’s supported self-assessment is an accurate and complete reflection of their needs because there may be a difference of opinion
 Regardless of the format a needs assessment takes, the final decision on eligibility is with the local authority
80

 Can use an assessment tool
 Where needs are not complex, assessor can decide which part of assessment tool is not necessary
Person’s wishes and feelings
 Safeguarding – refer if person is experiencing or at risk of abuse and neglect – run in parallel
Person centred
Assessments
Potential fluctuation of Need
Severity of
Person’s needs (more complex, more detailed
81

Slide taken from Skills for
Care
 In establishing the on-going level of need local authorities:
 must consider the person’s care and support history over a suitable period of time to take account of potential fluctuation of needs
 may also take into account at this point what fluctuations in need can be reasonably expected based on experience of others with a similar condition
82

 First Contact with LA – provide as much information as possible i.e. format / timescale / complaints process / access to advocacy. Have information in accessible format i.e. braille
 LA must consider does the person have substantial difficulty consider independent advocacy. Also consider whether person has difficulty communicating so as to ensure interpreter or specialist is available to support communication.
 Preventative services - Local authorities must ensure that their staff are sufficiently trained and equipped to make the appropriate judgments needed to steer individuals seeking support towards information and advice, preventative services or a more detailed care and support assessment. An assessment may be paused whilst preventative services are tried.
 LA has power to meet an urgent need even if the person is not OR in the area.
83

 Section 9 (6) states that when carrying out a need assessment, a local authority must also consider
 whether, and if so to what extent, matters other than the provision of care and support could contribute to the achievement of the outcome that the adult wishes to achieve wishes to achieve in day to day life, and
 whether the adult would benefit from the provision of anything under section 2 or 4 or of anything which might be available in the community.”
 This means the local authority are able to now defer decisions on final eligibility determination until a person has taken part in a preventative service, such as a reablement/ providing equipment / minor adaptations.
84

 Holistic
Approach -
How the adult’s needs for care and support impact on family members e.g. child carers etc Whole family approach
Focus on preventing needs
 Community Support
Groups
 Access to employment, education and training
 Re-ablement /
Rehabilitation
Consider persons strengths and capabilities /wider support network
 Example of
Sally – use of support to work service run by local voluntary organisation
85


An assessment has to be carried out based on P’s capabilities alone without the consideration of what support he has from family, friends or community network.
 i.e. an assessment must be carried out as though the adult has no support.

Case law had previously made clear that a need being met by a third party (either carer, disabled facilities grant or some other service) can be an eligible need.

Section 18 (7) provides that the duty to meet eligible needs does not apply to such of the adult’s needs as are being met by a carer.
86

Section 12 of the Care Act gives power the secretary of state make regulations about how a needs assessment or a carers assessment is to be carried out to ensure consistent practice of all those conducting assessments (also contained in Care and
Support (Assessment Regulations) 2014);
•
LA must ensure staff have the required skills, knowledge and competence to undertake assessments and that this is maintained.
•
Staff must have the skills and knowledge to carry out an assessment of needs that relate to a specific condition such as autism, learning disabilities, mental health needs or dementia.
•
If not available, assessor must consult with one.
•
Assessments for deaf blind and complex cases must be carried out by an assessor or team that has training of at least QCF or
OCN level 3.
•
An interpreter should be used where appropriate.
87

•
Where an individual with urgent needs approaches or is referred to the local authority, the local authority should provide an immediate response and meet the individual’s care and support needs. A more thorough assessment can then be carried out; similar to the current s.47(5) NHS &
CCA 1990.
88

Slide taken from Skills for
Care
Assessment
• What are the needs and outcomes the person wants to achieve?
Eligibility determination
• Are the person’s needs eligible?
Met needs
• What needs can be/are being met through nonservice provision?
Unmet needs
• Are included in the personal budget
89

•
If the person lacks capacity to consent to assessment or there is evidence of risk of neglect/abuse, the authority must ignore the refusal and continue to carry out the assessment. Obviously, the difficulties of completing an assessment without co-operation of the adult would still be a difficulty but not impossible.
90

Is the adult refusing an assessment?
No
LA must carry out the assessment where an adult may have needs for care and support
Yes
Yes
Is the adult a carer?
LA is not required to carry out the assessment.
NB. If carer subsequently requests assessment
/change of circumstances, must carry out the assessment
No
Does the adult have capacity to refuse the assessment?
Yes
No
Is it in the adult’s best interests to carry out the assessment?
No
Yes
The LA must carry out the assessment
Yes
The LA must carry out the assessment
Is the adult experiencing or at risk of abuse or neglect?
No
LA is not required to carry out the assessment.
Consider change of circumstances
91

Substantial Difficulty? Independent Advocate Required? Interpreter
Required?
Provide Information and Advice to Adult re Assessment Process and
Format
Consider Assessor’s Training and Expertise / Consult with someone with
Training and Expertise
Input of Expert for Complex Needs e.g. Deaf blind
Preventative Measures – Reduce / Prevent / Delay Needs Where Possible
Person’s Strengths and Capabilities and Support from Wider Community
Network
Needs Assessment – Needs / Outcomes / Impact on Well-being – Must be
Carer Blind
Eligibility for Services
92

•
93

Slide taken from Skills for
Care
 A carer’s assessment must explore:
 t he carer’s needs for support AND
 sustainability of caring role
 It must also consider impact on the carer’s activities beyond their caring responsibilities, including the carer’s:
 desire and ability to work
 Ability to partake in education, training or recreational activities
 opportunities to have time to themselves
94


Section 10 of the Care Act now creates;

A single duty to assess carers

Brings carers in line with the adult needing care

It now requires a local authority to carry out an assessment where it appears that a carer may have needs for support either presently or in the future

The assessment is not only to establish the carers needs for support but also the sustainability of the caring role
 The old ‘substantial and regular’ test has been taken away and replaced with any carer who may have any level of need.

Definition of carer includes those providing practical and emotional support.
95


A lot more prescriptive than the current law;
 A carer’s assessment is to include the carer’s ability and willingness to provide care and support, both now and in the future;

The impact of caring on the carer’s wellbeing which is to be now measured against the well being principle contained in section 1 (2).
This means any carers assessment should contain the relevant headings in line with the well being duty i.e. personal dignity, physical, mental health and emotional well being and so on.
 The carer’s assessment should also include the outcomes that the carer wishes to achieve in day to day life. In carrying out the assessment the local authority must also have regard to whether a carer works or wishes to work, or participates in, or would like to participate in, education, training or recreation.
96

•
97

Chapter 6 – Assessments & Eligibility
The regulations “The Care and Support (Eligibility
Criteria) Regulations 2014” has set a national eligibility criteria to be applied by all local authorities (has been set at substantial);
98

OLD LAW
Eligibility for social care law was determined by 2 parallel schemes;
1) s.21 National Assistance Act 1948 placed a duty on LA to provide residential accommodation for adults ‘who by reason of age, illness, disability or any other circumstances are in need of care and attention which is not otherwise available to them’
2) Eligibility for non-residential care was assessed against eligibility criteria contained in statutory guidance consisting of 4 bands
(critical, substantial, moderate and low); Las set up different variations.
RECOMMENDATIONS
 Law Commission criticised this framework for being overly complex; no reason why residential accommodation should be treated differently in respect of eligibility to other forms of care and support.
Eligibility was left to statutory guidance not primary legislation. Also carers were owed a ‘power’ to provide services not a duty.

Set out in chapter 6
– Eligibility.
Care and Support (Eligibility
Criteria) Regulations 2014 (the
‘Eligibility Regulations’)
99

Condition 1
• The adult’s needs are due to a physical or mental impairment or illness.
This includes conditions such as physical, mental, sensory, learning or cognitive disabilities or illnesses and brain injuries. (Formal diagnosis not required).
Condition 2
• The adult is “unable” to achieve two or more of the outcomes set out in regulations.
a) managing and maintaining nutrition;
• b) maintaining personal hygiene;
• c) managing toilet needs;
• d) being appropriately clothed;
• e) maintaining a habitable home environment;
• f) being able to make use of the home safely;
• g) 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;
• j) carrying out any caring responsibilities the adult has for a child.
Condition 3
• As a consequence there is, or there is likely to be, a significant impact on the adult’s wellbeing as set out in Section 1 of the Care Act
2014
• impacts on at least one of the areas of wellbeing in a significant way; or,
• the effect of the impact on a number of the areas of wellbeing mean that there is a significant impact on the adult’s overall wellbeing.
Must meet all 3 conditions
100

E.g. A physically disabled person is able to dress himself but takes a lot longer and leaves him exhausted.
Able to achieve outcome without assistance but takes longer
Unable to achieve without assistance
Meaning of ‘being unable’ to achieve an outcome
Includes those that need prompting
Able to achieve without assistance but doing so causes significant pain, distress and anxiety
If health and safety of an adult is endangered if adult completes a task
Able to achieve the outcome but doing so endangers self or others
E.g. an older person with arthritis able to prepare meal but left in pain
101

Assessment process
(Carer Blind)
Eligibility
Determination
(Carer Blind)
No duty to meet eligible need if met by carer
Care and
Support
Planning
102

Example 1
– Case Study
 Autistic - 32 year old man.
 Severe difficulty in socialising and co-operating with people.
 Cannot make eye contact – feels uneasy with people and vice versa.
 He is not in ideal employment, but has access to and is engaged in work.
 He prefers to socialise online and has access to those personal relationships that he considers essential.
103

• Example 2 – Case Study
 Autistic
 Severe difficulty in socialising and co-operating with people.
 Cannot make eye contact – feels uneasy with people and vice versa.
 He is too anxious and cannot develop friendships on his own
 Feels lonely and depressed
 His nervousness affects ability to take advantage of facilities in community.
104

Example 2 – John Taylor (Eligible)
Example 1 – Dave Brown (Not Eligible)

Autistic
 Severe difficulty in socialising and cooperating with people.

Cannot make eye contact
– feels uneasy with people and vice versa.

Dave is not in ideal employment, but has access to and is engaged in work.
This has some impact on his wellbeing but not to a significant extent.
 Dave prefers to socialise online and has access to those personal relationships that he considers essential.

Those aspects of his wellbeing that are affected by the needs caused by his autism are not so significantly affected that Dave’s overall wellbeing is at risk.
 Autistic
 Severe difficulty in socialising and cooperating with people.
 Cannot make eye contact
– feels uneasy with people and vice versa.
 Unable to achieve following outcomes;
 Developing and maintaining family or other personal relationships and
 Making use of necessary facilities and services in the community.
Impact on Well-being
 John is too anxious and cannot develop friendships on his own
 Feels lonely and depressed
 His nervousness affects ability to take advantage of facilities in community – significant impact on well-being.
105

Person appears to have needs
Slide taken from Skills for
Care
Assessment
Are their needs eligible?
Deferred payment agreement
YES
Financial assessment
NO (written explanation)
Advice and information
0
1
6

107

The Care Act strengthens the rights and recognition of carers:
 Improved access to information and advocacy should make it easier for carers to access support and plan for their future needs
 The emphasis on prevention will mean that carers should receive support early on and before reaching crisis point
 Adults and carers have the same rights to an assessment on the appearance of needs
 A local authority must meet eligible needs of carers and prepare a support plan
 A carer should be kept informed of the care and support plan of the person they care for
Children and Families Act 2014
0
1
8

 After completion of the assessment process, the local authority will determine whether the carer has eligible needs
 Carers can be eligible for support in their own right; no requirement for the adult needing care to be eligible
 The Act introduces a national carers’ eligibility threshold; this is set out in Care and Support (Eligibility Criteria) Regulations 2014;
Chapter 6 of the Statutory Guidance.
 Local authorities can also decide to meet carers’ needs that are not deemed to be eligible if they chose to do so
109

Condition 1
The needs arise as a consequence of providing necessary care for an adult
Condition 2
Authorities must consider is whether the carer’s physical or mental health is either deteriorating or is at risk of doing so, or whether the carer is unable to achieve any of a list of other outcomes which may apply.
Condition 3
As a consequence of that fact there is, or there is likely to be, a significant impact on the carer’s wellbeing
110

Engaging in recreational activities carrying out any caring responsibiliti es the carer has for a child providing care to other persons for whom the carer provides care making use of necessary facilities or services in the local community
To be eligible, a carer must be unable to achieve any of the following outcomes: engaging in work, training, education or volunteering developing and maintaining family or other significant personal relationships
managing and maintaining nutrition maintaining a habitable home environment
111

Is unable to achieve the outcome without assistance
E.g. A carer might be unable to fulfill their parental responsibilities unless they receive support in their caring role.
A carer might for example be able to provide care for their family and deliver necessary care for the adult, but, where this endangers the adult with care and support needs.
‘Being unable’ to achieve outcomes include circumstances such as this
Is able to achieve the outcome without assistance but doing so is likely to endanger the health or safety of the carer or any adults or children for whom the carer provides care.
Is able to achieve the outcome without assistance, but doing so causes or is likely to cause significant pain, distress or anxiety
For e.g. A carer might be able to care for the adult and undertake fulltime employment, but if doing both, this causes the carer significant distress, the carer should not be considered able to engage in employment.
112

•
Example 1
– Case Study
• 58 year old female, caring for her neighbour for 6 yrs i.e. checking in on her neighbour, doing her shopping, cleaning and helping her with the cooking every other day. Works 20 hours a week at the local school, and she is also picking up her grandchild after school.
• She enjoys the variety that her working life and caring role provide. She would like to spend more time with her grandchild in the afternoons.
•
She finds her caring roles fulfilling.
• She would like more free time and is tired at end of the day.
113

• Example 2 – Case Study
• 38 year old man, cares for his mother who has dementia. His mother has telecare, but he still checks in on her daily, and does her shopping, cooking and laundry. He is a divorced father of two children, who live with him every other week. He works fulltime in an IT company.
• He wants to spend more time with his children and to free an hour in the afternoon to help them with their homework.
• He is feeling like a failed parent
• Affecting his relationship with his children, ex wife and his mother
• His work is in jeopardy unless he has support
• Is stressed and anxious
114

Example – Deidre (Not Eligible) Example - Sam (Eligible)
Deidre is 58, caring for her neighbour for 6 yrs i.e.
Sam is 38 and cares for his mother who has dementia.
Sam’s mother has telecare, but he still checks in on checking in on her neighbour, doing her shopping, her daily, and does her shopping, cooking and laundry. cleaning and helping her with the cooking every
Sam is a divorced father of two children, who live with other day. Works 20 hours a week at the local him every other week. Sam works fulltime in an IT school, and she is also picking up her grandchild after school.
• Deirdre enjoys the variety that her working life company.
• Sam wants to spend more time with his children and caring role provide. She would like to spend and to free an hour in the afternoon to help them with their homework. Sam’s needs impact the more time with her grandchild in the afternoons.
Deirdre’s needs impact on the following following outcomes :
• Carrying out caring responsibilities the carer outcomes :
• Carrying out caring responsibilities the carer has for a child.
• Engaging in recreational activities.
• Impact on well-being
• Deidre finds her caring roles fulfilling
•
She would like more free time and is tired at end of the day
•
Not eligible as no significant impact on has for a child.
• Engaging in recreational activities.
• Impact on well-being
• He is feeling like a failed parent
• Affecting his relationship with his children, ex wife and his mother
• His work is in jeopardy unless he has support
• Is stressed and anxious
• Eligible as he has significant impact on his well-being.
well-being
115

•
116

•
Contains a new, single legal duty for an adult’s eligible needs to be met by his or her local authority, subject to their financial circumstances. This will replace s.21 NAA
1948, s.2 Chronically Sick and Disabled Persons Act
1970.
•
Section 18 sets out circumstances in which a LA is obliged to meet an adult’s eligible needs and is the principal means through which individual entitlement to care and support is established.
117

Section 18 (1) - the duty to meet eligible needs for care and support arises if:-
• The adult meets the eligibility criteria set out in regulations s.13
• The adult is OR in the authority’s area or is present in the area with no settled residence.
• If the LA does not charge for a type of care and support, or regulations provide that it is to be provided for free, there is a duty regardless of the person’s finances.
• If the LA charges, the adult’s financial circumstances are taken into account and one of 3 conditions are met (see following slide).
• The LA must meet an adult’s eligible needs for care and support if the person’s care costs have reached the cap
(S.18(5).
118

Condition 1
• If the LA does charge and the adult’s financial assessment are assessed as being at or below the financial limit set in regulations, the duty to meet the eligible needs is triggered.
Condition 2
• If the LA does charge, and the adult’s financial circumstances are assessed as being above the financial limit set in regulations, the duty to meet eligible needs is triggered if the adult requests that the LA meet their needs.
• sS.14 (1) (b) provides the LA can charge a fee for arranging the provision of care and support.
• For a person who lacks capacity, another person acting on their behalf can make this request if in their best interests.
Condition 3
• If the LA does charge, the duty to meet eligible needs is triggered if the adult lacks the mental capacity to arrange care and support and there is no other person in a position to arrange that care and support on their behalf. The explanatory notes states that there must be no other person ‘willing and able’. An LPA / Deputy must be welfare orientated not just finances.
119

 Section 18 (5) deals with those who exceed care costs, the LA owes a duty to meet adult’s care and support needs.
 Section 18 (7) specifically states that the LA are not under a duty to meet the adult’s needs if the needs are being met by a carer. However the guidance states that the local authority should record where this is the case in the plan, so that the authority is able to respond to any changes in circumstances (for instance, a breakdown in the caring relationship) more effectively.
 There is a power under s.19 to meet needs for those where there is no duty i.e. those whose assessments have not yet been completed.
120

121

Accommodation in a care home or in premises of some other type;
Counselling and other types of social work;
 List of examples NOT definition
 Non exhaustive
 Meant to illustrate modern ways of meeting needs
 Must be read in conjunction with the outcomes in s.1(2)
 Subject to prohibitions in s.22
& s.23
 Applies to carers
Information, advice and advocacy.
Care and support at home or in the community
Goods and facilities
122

 Previously term ‘community care services’ was used to describe the range of care and support that could be provided to older and disabled persons (s.46 (3)
NHS & CC Act 1990)
 This was defined by reference to various statutes, approvals and directions e.g.s.2(1) Chronically Sick and Disabled Persons Act 1970 set out list of
‘welfare services’
 Law Commission criticised this over arching structure – outdated, convoluted and confusing in places. The new provision provides some indication of the range of what a local authority can do to meet an adults’/carers’ needs.
123

•
124

• Section 24 of the Care Act prescribes what steps the
LA needs to take following an assessment.
• Give the adult written reasons for not meeting needs and information about reduction, prevention and delay
(s.24(2)).
• Where an LA meets needs under s.18 or s.20 or decides to meet needs under s.19, it must-
• Prepare a care and support plan for the adult and support plan for carer
• Tell the adult which of the needs that it is going to meet will be met by direct payments, and
• Help adult to decide how to meet those needs.
• Includes information and advice of anything that can be done to reduce the needs in question.
125

Person centred care and support planning refocuses the priority from services to ensuring better lives for people. This means focusing upon the person and their needs and not focusing upon existing service provision.
Person not services
Person centred care and support planning puts people in control of their care and they should be free to take ownership of the development of their plan if they wish, or be encouraged to be actively involved in the preparation of the plan jointly with the local authority.
Person has control
Person centred planning
Emphasis on assets and capabilities
The person must be actively involved and influential throughout the planning process, with the support that they need to enhance their wellbeing and improve their connections to family, friends and community.
First person
The starting point is believing that the person has the capability to plan for themselves i.e. there is a need to focus upon peoples’ strengths and assets rather than the deficits. This should include the support and strengths that they have in their communities as well as their own personal capabilities.
126
Slide taken from Skills for Care Care and Support
Planning

Direct payment and the amount and frequency of the payments.
The needs identified by the assessment;
Whether, and to what extent, the needs meet the eligibility criteria;
Final Plan must include;
Information and advice / prevent or delay;
Personal budget;
For a carer, carer’s outcomes and wishes and feelings
The desired outcomes care and support could be relevant;
127

Consider combining the plans of an adult requiring and carer, if they agree
LA must take into consideratio n any needs that are being met by a carer
Consider if
Carer requires independent advocate
Needs met by a carer - in these cases the carer must be involved in the planning process
LA to record the carer’s willingness to provide care in the plan
Any change in carer’s cicumstance
LA can respond to changes in circumstance
Carer is willing and able, LA not required to meet that need;
Consider universal services and communitybased and/or unpaid support
128


Care and support planning should put people in control of their care.
 The person must be actively involved and influential throughout the planning process.

Independent advocates must be instructed early in the planning process for those who have substantial difficulty and have no other means of accessing appropriate support to facilitate their involvement.
129

 The Mental Capacity Act 2005 (MCA) requires local authorities to assume that people have capacity and can make decisions for themselves, unless otherwise established
 A person must be given all practicable help to make specific decisions before being assessed as lacking capacity
 Where an individual has been assessed as lacking capacity, the local authority must commence care planning under the
‘best interests principle’ within the meaning of the MCA
 The duty to involve the person remains throughout the process and there is a duty to consult family members and others in the best interests process.
130

 The Mental Capacity Act 2005 (MCA) provides legal protection for acts of restraint only if the act is:
 necessary to prevent harm to the person
 a proportionate response to the likelihood of the person suffering harm and the seriousness of that harm, and
 in the person’s best interests
 If the degree and intensity of restrictions and restraints are so significant that they amount to a deprivation of liberty, this must be authorised under the Deprivation of Liberty
Safeguards (DOLS) under the MCA
131

•
Section 25 (5) states;
• “In performing the duty under subsection (3)(a) or (4)(a), the local authority must take all reasonable steps to
reach agreement with the adult or carer for whom the plan is being prepared about how the authority should
meet the needs in question.”
•
Statutory duty to take reasonable steps to reach agreement with adult needing care or carer – potential disputes
132

• No corresponding duty to provide reasons for the care and support plan even though 25(5) speaks of taking all reasonable steps to reach agreement about how the authority should meet the needs. Local Authorities would be advised that reasons are given at this stage as to why it has reached the decision it has especially if this is not in agreement with the service user and/or family.
• Section 27 makes provision for review of care and support plan or of support plan. It requires that the care and support plan must be kept up to date and accurate reflection of the person’s needs and the outcomes they wish to receive. Where an LA thinks the needs have changed, it must carry out a re-assessment.
133

3
1
4

The person must be actively involved throughout the planning process
An independent advocate must be instructed at an early stage if a person has substantial difficulty in engaging in the process
The plan must describe what needs the person has, and which needs the local authority is to meet
The plan must include: the personal budget and direct payments
The local authority must inform the person which, if any, of their needs may be met by a direct payment
The local authority must give a copy of the final plan to the person and others requested by the person in an accessible format
The local authority has a duty to keep the person’s plan under review
135

•
136

 Social care in UK is not free unlike NHS which is free at the point of use. “Health care bankrupts no-body..” Social care can consume large amounts of an individual’s family’s income and resources.
 Prior to Care Act, charging rules for residential care were set out in regulations and statutory guidance. Charging rules for non residential care set out statutory guidance but LA had flexibility to design own charging rules.
 Law commission recommended that legal provisions on charging for services should be rolled into a single statutory provision (Care
Act) following regulations and guidance apply;
• The Care and Support (Charging and Assessment of Resources)
Regulations 2014;
• The Care and Support and Aftercare (Choice of Accommodation)
Regulations 2014.
• Chapter 8 – Charging and Financial Assessments and;
137

Intermediate care, including reablement, which must be provided free of charge for up to six weeks. Discretion to be used to offer it more than 6 weeks
Community equipment aids and minor adaptations of less than £1,000
Care and support provided to people with Creutzfeldt-Jacob Disease
After-care services/support provided under section 117 of the Mental Health
Act 1983
Any service or part of service which the NHS is under a duty to provide or which LA must provide through other legislation
Assessment and Care Planning porcess is free of charge.
138

Section 14 & 17 Care
Act 2014
– framework for charging
LA must not charge more than the cost that it incurs in meeting the assessed needs
Capital at or below the upper capital limit (currently
£23,250)* = help towards care costs
Cannot recover admin fee for arranging care and support
LA must have regard to detailed guidance set out in Annexes B and C of the Guidance
EXCEPT where self funders have asked LA to arrange care and support
– only cost of arranging
Power to Charge
Carers (Discretion)
Carer support or input does not go towards the cap
LA must not charge a carer for care and support provided directly to the person they care for under any circumstances .
139


* From 2016, the current upper asset threshold of
£23,250 will be increased to £118,000 so from April
2016 if a person’s property is taken into account in the financial assessment of their assets, they may receive some financial support towards their residential care costs if their assets including the value of their property are worth less than £118,000.
If their home is not included in the financial assessment, they may receive some financial support towards their residential care costs if their assets are worth less £27,000. The lower asset limit will be £17,000 (previously £14,250.00).
140

• Introduction of cap to “reasonable costs” incurred by individuals on their care and support. This means a council would not be able to charge a person for meeting their eligible care needs after a certain sum (the person’s “accrued costs) has already been incurred in meeting their eligible needs.
• This section is not coming into force until 2016; guidance and secondary regulations for this section not been published yet.
• The cap would be set at £72,000 for pensioners in April 2016 and increase annually by the change in average earnings (this is specified in section 16).
• A cap will be introduced on the costs that people have to pay to meet their eligible needs (from April 2016) based on a reasonable cost to the LA and the calculation will only start from the start of the commencement of the sections.
• The amount to be calculated towards the cap includes the total cost to the local authority (not the actual cost of placement) of meeting the person’s eligible needs even if it is solely paid for by the person, the local authority or even paid for by both.
141

• It is envisaged that adults of younger ages would benefit from a lower costs cap; it is envisaged that 18 year olds would benefit from free care and support and their would be a sliding cap on care costs therefore different amounts for persons of different age groups.
• Daily living costs are to be disregarded; this means that costs such as utility bills, food are to be disregarded and do not count towards the accrued costs cap. Where the cost to the local authority includes daily living costs, the LA can make a charge for the amount to cover those daily living costs.
• If a person has reached the cap on care costs, an LA can still continue to charge for daily living costs. There will be regulations, which will set the amount that will be considered as representing an adult’s daily living costs.
•
This new provision will have significant financial impact on Adult
Social Care Budgets.
142

[ Anticipated] Sliding Cap on Care Costs
Cap on Care
Costs £
Reasonable cost to the LA not necessarily cost of care
Excluding daily living costs
80000
70000
60000
50000
40000
30000
20000
10000
0
18 years 30 years 50 years
Age of Person needing care and support
Pension age
143

Slide taken from Skills for
Care
If you have care and support needs, you could be supported by…
Assessment of the care and support you need, and eligibility for state support
Information and advice on local services and how much they cost
Reablement, rehabilitation and other free services
Support from family, networks community…
How much you might pay for your care and support depends on your financial situation
You have a financial assessmen t to see what you have to pay
Every year the local authority
• Reviews your care needs and financial situation
• Keeps a record, from April 2016, called a care account , of how much eligible care you have needed in total
Costs are capped
There is a cap on expenditure on eligible care from April
2016

•
145

 The Care Act 2014 places personal budgets on a statutory footing for the first time.
 The Care and Support (Personal Budget Exclusion of Costs) Regulations
2014.
 Chapter 11 – Personal Budgets;
 The personal budget is the mechanism that, in conjunction with the care and support plan, or support plan, enables the person, and their advocate if they have one, to exercise greater choice and take control over how their care and support needs are met.
 Everyone whose needs are met by the local authority, whether those needs are eligible, or if the authority has chosen to meet other needs, must receive a personal budget as part of the care and support plan, or support plan. The personal budget is an important tool that gives the person clear information regarding the money that has been allocated to meet the needs identified in the assessment and recorded in the plan.
.
 This must be broken down so that the adult can see from the statement the amount, which the adult must pay towards the cost, and the amount the LA must pay.
 In cases where the LA is required to meet the needs under s.18, the personal budget must also specify the cost to the LA of meeting the needs and where the cost includes daily living costs, the amount for this.
146

Personal
Budgets
• Before care and support planning begins, an estimate of how much money will be available to meet a person’s assessed needs and, with the final personal budget, having clear information about the total amount of the budget, including proportion the local authority will pay, and what amount (if any) the person will pay.
Key Part of
Person
Centred Plan
• Being able to choose from a range of options for how the money is managed, including direct payments, the local authority managing the budget and a provider or third party managing the budget on the individual’s behalf (an individual service fund), or a combination of these approaches.
Exercise greater choice and control
• Having a choice over who is involved in developing the care and support plan for how the personal budget will be spent, including from family or friends.
• Having greater choice and control over the way the personal budget is used to purchase care and support, and from whom.
147

• Chapter Guidance “personal budgets” ;
•
LA needs to decide how much money (an indicative budget) there is to meet eligible assessed needs including a clear indication of what the LA will pay and what amount the person will pay (if any); this should be provided at the start of the planning process.
•
The process to establish the personal budget must be transparent so that people are clear how the budget is calculated (supported by caselaw – KM v Cambridgeshire);
•
The method used so that people have confidence that the personal budget allocation is correct and therefore sufficient to meet their care and support needs.
• Potential Risk – Indicative budgets will have to be provided up front
– the final budget can be lower. This will need to be justified and clear reasons for this.
148

Cost to the local authority of meeting the person’s needs
Can use
Resource
Allocation
System
(RAS)
Different Ways to
Calculate Personal
Budget
A ‘one size fits all’ approach to resource allocation should not taken
If RAS not suitable, consider alternative approaches for complex needs
Principles of transparency, timeliness and sufficiency
149

Transparency
Make the allocation process publicly available or bespoke service. Complex
RAS to also be transparent
Sufficiency - must be sufficient to meet the person’s needs and must also take into account the reasonable preferences to meet needs
Important
Principles in setting personal budget
Timeliness personal budget to arrive at an upfront allocation which can be used to inform the start of the care and support planning process.
150

Example – Flexible use of a carer’s personal budget
Connor has been caring for his wife, who is in a wheelchair with ME and arthritis, for the last nine years. He does all the cooking, driving and general household duties for her.
Connor received a personal budget which he requested in the form of a direct payment from his local authority for a laptop to enable him to be in more regular contact through
Skype with family in the US. This now enables Connor to stay connected with family he cannot afford to fly and see. This family support helps Connor with his ongoing caring role.
family unit.
Divya has four young children and provides care for her father who is nearing the end of his life. Her father receives a direct payment, which he used to pay a family member for a period of time to give his daughter a break from her caring role. 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. This gives Divya regular breaks from caring which are important to the
151

•
152

 A brand new concept labelled as the “independent personal budget”.
 Section 24 (3) states that the council prepare independent personal budgets for people whose needs are not being met by the LA but whose needs;
- meet eligibility criteria
- at least some of their needs is not being met by a carer and
- are OR in the LA’s area
 Above refers to self funders or those who chose not to have their needs met by the LA.

The LA must set out what the council would spend on meeting their eligible needs. This would enable to qualify for state funding when the accrued costs reach the cap.
153

•
Will result in significant increase in work for adult social workers.
•
Potential difficulty – how do you maintain an independent personal budget without a care plan, the latter would factor in carers input etc.?
•
Potential disputes around this issue with local authorities using a notional cost of care where the actual cost may be a lot higher; in such cases local authorities have to show clearly how they have worked out the notional cost of care; this will have to be clear and transparent. The fact that there is no care plan may hinder the local authority somewhat in this.
154

•
•
155

•
OR has been put on a statutory footing.
•
For the first time, there is a continuity of care duty.
•
Section 37 sets out the duties that the local authority is under when the service user decides to move to an area of another authority of its own volition; the intention of the person’s move must be genuine .
•
There is a set process to follow where someone moves to another area; the specific documents which must be given by LA - A to LA – B.
•
The LA – B must carry out assessments and give reasons for coming to a different conclusion, if applicable.
156


A welcome change – if on the day of the move, the assessments have not been completed, the LA – B must meet the adult’s / carer’s needs regardless and continue to keep care account.
 In doing this, LA – B will have to continue paying whatever LA – A has been paying.

This means LA – B has to act very quickly.
157

•
Where an adult has needs for care and support which can be met only if the adult is living in accommodation of a type specified in regulations, the adult is to be treated as ordinarily resident in the area in which he was living immediately before the adult began living in the accommodation of a type specified.
•
Currently if an adult needs residential accommodation and a
LA arranges it, the placing authority kept responsibility of the adult even if the home was out of the borough. This did not apply to supported living or shared lives schemes.
•
The regulations seeks to extend the types of accommodation to cover supported living and shared lives schemes which will mean a significant change to the OR rules.
158

•
Section 40 provides for Secretary of State to deal with disputes, same way as now.
•
Section 41; financial adjustments between local authorities. This states that where a local authority has been meeting an adult’s needs for care and support and it transpires that the adult was either some or all of that time the responsibility of another borough; the local authority concerned may recover from the other local authority “the amount of any payments it made towards meeting the needs in question at a time when the other local authority was instead liable to meet them…”
159

•
160

• Section 73 states that ;
• A registered provider who provides regulated care and support to an adult or support to a carer in accommodation is to be exercising a function of a public nature and therefore section 6 of the Human
Rights Act 1998 is to be applicable.
• The requirement is that the care and support must be arranged or funded by the LA.
• This applies to both residential and non-residential accommodation.
161

•
162

 A late addition to the Care Act is the new section
(Section 72) relating to Appeals of decisions taken by local authorities in exercise of its functions under Part 1 of the Act, which covers decisions made in respect assessments, eligibility, care and support plans, care accounts, costs cap, direct payments, deferred payments, safeguarding etc.
 The section goes onto state that regulations will make provision for appeals in respect of where, when, how etc. and grounds upon which an appeal may be brought. The regulations may also provide for an establishment of a panel to consider an appeal. At this stage, the draft regulations for Appeals have not been published.
163

•
164

•
S.117 of the Mental Health Act 1983 requires the NHS and local social services, in co-operation with voluntary agencies, to provide after-care to patients detained in hospital for treatment under MHA regimes.
• Care Act now defines ‘after-care services’ means services which have both of the following purposes –
• a) meeting a need arising from or related to the person’s mental disorder and –
• Reducing the risk of deterioration of the person’s mental condition (and accordingly, reducing the risk of the person requiring admission to a hospital again for treatment for mental disorder
165

•
Residence Requirements
•
Prior to Care Act, the concept of ordinary residence did not apply to s.117 services. Instead, the duty to provide after-care services fell upon those bodies responsible ‘for the area in which the person concerned is resident or to which he is sent on discharge by the hospital in which he was detained.’
•
This has now changed and the concept of ordinary residence now applies to s.117. This means that s.117 service users can now access dispute resolution through
Secretary of State in accordance with s.40 Care Act 2014.
166

•
Prior to Care Act, the choice of accommodation directions, the additional payments regulations did not apply to residential accommodation under s.117. The Law
Commission recommended all service users should be given the right to choose the accommodation that is being provided by a local authority. Under s.75 (6), this empowers the Secretary of State to make regulations to place a duty on a LA to enable a person who qualifies for accommodation under s.117 to live in accommodation of their choice with a top up fee if required.
•
At the this time, no secondary regulations have been published in respect of this.
167

SAFEGUARDING –THE CURRENT POSITION (1)
Safeguarding underpinned by a variety of legal sources
Civil law
Criminal law
Mental
Health
Act
1983
No
Secrets
DoH
2000
Mental
Capacity
Act 2005
Community care legislation – assessment
/ care planning

SAFEGUARDING –THE CURRENT POSITION (2)
Human
Rights
Act 1998
& ECHR
No
Secrets
DoH
2000
Court’s inherent jurisdiction
NHS law
Information sharing
Regulation and inspection
170

Set out in section 42(1) of the Care Act 2014
Enquiry by local authority
…. a local authority has reasonable cause to suspect that an adult in its area (whether or not ordinarily resident there)
—
(a) has needs for care and support (whether or not the authority is meeting any of those needs),
(b) is experiencing, or is at risk of, abuse or neglect, and
(c) as a result of those needs is unable to protect himself or herself against the abuse or neglect or the risk of it.
171

Paragraph 14.17 of the statutory guidance
 Physical abuse
 Domestic violence
 Sexual abuse
 Psychological abuse
 Financial or material abuse
 Modern slavery
 Discriminatory abuse
 Organisational abuse
 Neglect and acts of omission
 Self-neglect
172

Statutory guidance sets our 6 key principles that underpin all safeguarding work:
• EMPOWERMENT
• PREVENTION
• PROPORTIONALITY
• PROTECTION
• PARTNERSHIP
• ACCOUNTABILITY
173

OVERVIEW OF SAFEGUARDING PROVISIONS (1)
SAFEGUARDING
ENQUIRIES
SAFEGUARDING
ADULTS
BOARDS
LA duty to make/cause to be made enquiries where it believes an adult is subject to, or at risk of abuse/neglect
LA duty to establish a
SAB for its area
SAFEGUARDING
REVIEWS
Section
44
SAB duty to arrange a
SAR where concerns about how
SAB/members of
SAB/others with relevant functions worked together to safeguard adult where relevant conditions for
SAR are met
174

CARE ACT 2014
OVERVIEW OF SAFEGUARDING PROVISIONS (2)
Section
45
Duty on persons to comply with SAB’s request to supply information to it subject to specified conditions
Section 68
LA duty to arrange independent advocate to represent and support adult subject to enquiry/review if adult has substantial difficulty understanding the process or communicating their views
Section
81
Duty on providers to be open with patients and their families and about failings in their care and to apologise for such failings.
175

THE CARE ACT 2014
SCHEDULE 2 – SAFEGUARDING ADULTS BOARDS
MEMBERSHIP
Para 1
Specifies members of the SAB
( a) The LA
(b) CCG
(c) Chief Officer of Police
(d) Other persons specified in regulations
FUNDING/OTHER
RESOURCES
Para 2
Power to make payments incurred by or for purposes of
SAB
Member of
SAB has power to provide goods/staff/a ccommodati on
STRATEGIC
PLAN
Para 3
Duty to publish strategic plan
Must consult
Healthwatch and local community
ANNUAL
REPORT
Para 4
Duty to publish annual report
Copy of report to be sent to specified persons
176

SAFEGUARDING
STATUTORY DUTIES OF THE LOCAL AUTHORITY
UNDER THE CARE ACT 2014
 MAKE/CAUSE TO BE MADE SAFEGUARDING ENQUIRIES – S42
 ESTABLISH A SAB FOR ITS AREA – S43
 PROTECTION OF PROPERTY – S47
 ARRANGE AN INDEPENDENT ADVOCATE FOR PERSON SUBJECT
TO ENQUIRY OR REVIEW WHERE THAT IS REQUIRED – S68
 IS ONE OF THE CORE STATUTORY MEMBERS OF THE SAB –
Schedule 2
 APPOINTS THE CHAIR FOR THE SAB
–
Schedule 2
 CAN INCLUDE AS MEMBERS OF THE SAB, OTHER SUCH
PERSONS AS THE LA CONSIDERS APPROPRIATE – Schedule 2
177

Paragraph 1 of Schedule 2 of the Care Act 2014
Specifies the statutory core membership of the SAB: a) the local authority which established it,
(b) a clinical commissioning group the whole or part of whose area is in the local authority’s area,
(c) the chief officer of police for a police area the whole or part of which is in the local authority’s area, and
(d) such persons, or persons of such description, as may be specified in regulations
178

Paragraph 1 of Schedule 2 of the Care Act 2014
 The membership of a SAB may also include such other persons as the local authority which established it, having consulted the other members listed in sub-paragraph (1), considers appropriate.
 A local authority, having consulted the other members of its SAB, must appoint as the chair a person whom the authority considers to have the required skills and experience.
 Each member of an SAB must appoint a person to represent it on the
SAB; and the representative must be a person whom the member considers to have the required skills and experience.
179

Section 43 - Safeguarding Adults Boards
 Section 43(1) – The objective of the SAB is to help and protect adults in its area of the kind described in section 42(1)
 Section 43(2) - The SAB must seek to achieve its objective by coordinating and ensuring the effectiveness of what each of its members does
180

Section 44 – Safeguarding Adults Reviews
Section 44 (1) The SAB must arrange a safeguarding adults review of a case involving an adult in its area with needs for care and support(whether or not the LA has been meeting any of those needs if
(a) There is reasonable cause for concern about how the SAB/its members/other persons with relevant functions worked together to safeguard the adult, and
(b) Either the adult has died and the SAB knows/suspects death resulted from abuse/neglect, or the adult is still alive and the SAB knows/suspects that the person has experienced serious abuse/neglect
181

DUTIES OF THE SAB (3)
Safeguarding Adult Reviews
Section 44(5)
Each member of the SAB must co-operate in and contribute to the carrying out of a review under section
44 with a view to:
(a)i dentifying the lessons to be learned from the adult’s case;
(b)applying those lessons to future cases
182


183

Paragraph 4 - Duty to publish annual report
The annual report must deal with the matters specified in paragraph 4(1)
The SAB must send a copy of the annual report to the following:
• the chief executive and the leader of the local authority which established the SAB,
• (b)the local policing body the whole or part of whose area is in the local authority’s area,
• (c)the Local Healthwatch organisation for the local authority’s area, and
• (d)the chair of the Health and Wellbeing Board for that area
184

Section 44 – Safeguarding adults reviews
S44(5) specifies that each member of the SAB must co-operate in and contribute to the carrying out of a review under section 44 with a view to:
(a) Identifying the lessons to be learned from an adult’s case
(b)Applying those lessons to future cases
185

SECTIONS 43 AND 45
 May do anything which appears to it to be necessary or desirable for the purpose of achieving its objective – s43(4)
 Can require person to supply information to the SAB or another relevant person, and the person to whom the request is made must supply it if specified conditions are met – s45
186

SCHEDULE 2 – paragraphs 1& 2
Membership
 A SAB may regulate its own procedure
Funding and other resources
 Statutory core member of SAB can make payments towards expenditure incurred by, or for purposes connected with, the SAB —
(a) by making the payments directly, or
(b) by contributing to a fund out of which the payments may be made.
 Statutory core member of SAB may provide staff, goods, services, accommodation or other resources for purposes connected with the
SAB
187

SECTION 45
If certain conditions are met, a person or body must supply information to a
SAB at its request.
The conditions are
• CONDITION 1 - the information must be requested for the purpose of enabling or assisting the SAB to perform its functions; and
•
CONDITION 2 - the person or body requested to supply the information must have functions or engage in activities such that the SAB considers it likely to have information relevant to a function of the SAB and either
188

CONDITION 3 - The information relates to:
(a) the person to whom the request is made
(b) a function or activity of that person, or
(c) a person in respect of whom that person exercises a function or engages in an activity
OR
CONDITION 4 – the information:
(a) is information requested by the SAB from a person to whom information was supplied in compliance with another request under section 45, and
(b) is the same as or derived from that information.
189

EXAMPLE
A GP who provided medical advice or treatment to an adult in respect of whom a SAB was carrying out a serious case review, or to a family member or carer of that adult.
It would also potentially encompass a person carrying out voluntary work that brought him or her into contact with such an adult or with a family member or carer, or a minister of a church attended by such an adult or by a family member or carer.
190

SECTION 92
This section creates a new offence so that providers of health services and adult social care in England, which supply, publish or otherwise make available information that is false or misleading, could be subject to criminal sanctions.
It is envisaged that the offence will typically apply in cases involving the supply of information to the Secretary of State, the Health and Social Care
Information Centre, regulators and commissioners, in accordance with those persons’ and bodies’ statutory powers to require information
191

THE CARE ACT 2014
OTHER SAFEGUARDING SPECIFIC PROVISIONS
Section 46
Abolishes the power of local authority under section 47 of the
National Assistance Act 1948 to remove persons in need of care.
Section 47
Imposes a duty on the LA to take reasonable steps to prevent or mitigate loss or damage to movable property of an adult where (i) the adult’s needs for care local authority and support are being met by the LA in accommodation/or he is in hospital, or both, (ii) it appears to the LA there is a danger of loss or damage to the property, (iii) no suitable arrangements have been or are being made.
192

Designated Adult Safeguarding Manager (1)
Paragraph 14.175 – 14.186 of the Statutory Guidance
Each member of the SAB should have a Designated Adult Safeguarding
Manager.
The DASM has the role/responsibilities :
• Management and oversight of individual complex cases;
• Co-ordination where allegations are made or concerns raised by a person;
• Keeping in regular contact their counterparts in partner organisations;
• Highlighting the extent to which their own organisation prevents neglect and abuse taking place;
• Providing advice and guidance within their organisation and liaising with other agencies as necessary;
193

Designated Adult Safeguarding Manager (2)
Paragraph 14.175 – 14.186 of the Statutory Guidance
Cnt/d
• Monitoring progress of cases to ensure they are as quickly as possible;
• Ensuring appropriate recording systems are in place to provide clear audit trails about decision making and recommendations in all processes relating to the management of safeguarding allegations;
• Ensuring control of information in individual cases complies with data protection and confidentiality requirements;
• Working closely with children’s services LADO and other LADOs and
DASMs in the region/nationally to share information and best practice.
194

 SENIOR MANAGERS:
Each agency to identify a senior manager to take a lead role in organisational and in interagency arrangements, including the SAB
– must be someone sufficiently senior to take strategic decisions and commit resources.
 CHIEF OFFICERS AND EXECUTIVES
In particular the Director of Adult Social Services has a very important leadership and challenge role to play in adult safeguarding
 LOCAL AUTHORITY MEMBERS
Members are required to have a good understanding of adult safeguarding, principles and issues. LA Health Scrutiny functions, Health and Well Being Boards and Community Safety Partnerships play a valuable role in assuring local safeguarding measures.
195

 COMMISSIONERS
Commissioners for the LA, NHS and CCGs must assure themselves of the quality and safety of organisations they place contracts with and ensure contracts have explicit clauses holding providers to account for preventing and dealing promptly with abuse and neglect;
 PROVIDERS
Clear operational policies and procedures that reflect framework set by the
SAB in consultation with them.
 VOLUNTARY ORGANISATIONS
Work with SAB and commissioners to agree how their role fits alongside them.
 REGULATED PROFESSIONALS (e.g. doctors, nurses SWs etc)
Must understand how professional standards/requirements underpin their organisational roles to prevent, recognise, respond to abuse.
196

What does the new statutory framework mean for SABS?
• SAB are strengthened and have more powers than they did under “No
Secrets”
• However SAB’s are also more transparent and subject to greater scrutiny
• Providers of domiciliary, residential, nursing home care, hospitals must have clear operational policies and procedures that reflect framework set by SAB in consultation with them – paragraph 14.175 of the guidance
• Designated Adult Safeguarding Manager (‘DASM’) – Each member of the SAB must have a DASM responsible for the management and oversight of individual complex cases and co-ordination where concerns are raised about a person – paragraph 14.176 of the guidance
• Need to agree processes e.g. information sharing, procedures for carrying out SARs`etc
197

What does the new statutory framework mean for Local Authorities ?
• Emphasis on sensible risk appraisal not risk avoidance
• All organisations involved in safeguarding will need to ensure that their practices and procedures reflect the statutory guidance when devising training and implementation plans for staff
• All policies and procedures should be based on processes set out in the statutory guidance
• All Council departments must make staff aware of adult abuse/neglect and how to report concerns
• Councillors need to be made aware of their corporate role in protecting adults from abuse and neglect
• Need to agree with partners how new arrangements will work
(developing local policies, information sharing agreements between agencies) etc
198

ADASS/LGA guides: http://www.local.gov.uk/adult-social-care/-
/journal_content/56/10180/6074789/ARTICLE
199

200

201

DUTIES TO PRISONERS AND PERSONS IN
APPROVED PREMISES
SECTION 76 AND CHAPTER 17 OF THE
STATUTORY GUIDANCE
Section 76 sets out responsibilities for provision of care and support for adult prisoners and people residing in approved premises (which includes bail accommodation).
Where it appears to a local authority that adults in prison or approved premises may have needs for care and support, the local authority will be under a duty to assess their needs and where they have needs which meet the eligibility criteria, may be under a duty to meet those needs.
202

DUTIES TO PRISONERS AND PERSONS IN
APPROVED PREMISES
• Can also apply to persons over 18 years in YOI, secure children’s homes and secure training centres
• Bail hostels and other types of accommodation for the supervision and rehabilitation of offenders
203

The ordinary residence of persons in custody to determine the LA responsible for assessing and meeting needs for care and support
(i) whilst they are in custody,
(ii) when they are transferred from one prison to another,
(iii) on their release from prison;
The ordinary residence of persons who are required to reside in any in any other premises as a condition of their bail.
Which of the care and support provisions are not applicable to persons in prison
204

CONTINUITY OF CARE AND RESPONSIBLE LOCAL AUTHORITY
• Individuals in prison are NOT ordinarily resident there as they are not living there voluntarily;
• Responsibility for assessment and care provision rests with the
LA where the prison is located;
• On release from prison their ordinary residence will generally be in the authority where they intend to live on a permanent basis
205

CONTINUITY OF CARE AND PRISONERS MOVING BETWEEN
ESTABLISHMENTS
•
Governor of the prison where the person is moving from to inform the
LA where the prison is located of the impending move (LA1)
• LA1 to retain responsibility if the move is to another prison in the same area;
• If move is to a prison in another LA area (LA2) LA1 to inform LA2 once it has been informed of the move by the prison;
• LA2 to assess the prisoner before they move but if they have not done so before the move, it must continue meeting needs met by LA1 until it has carried out its own assessment.
206

ORDINARY RESIDENCE OF PEOPLE LEAVING PRISON
• Deeming provisions in section 39 don’t apply;
• However reasonable to follow the approach in section 39 i.e. where a person requires a specified type of accommodation to meet their needs on release, then start from presumption they remain ordinarily resident in which they were OR before the start of their sentence;
• Where the person being released to a new area, the local authority which they plan to move to should undertake the assessment;
• Probation provider, and local authority providing care and support to start joint planning for release in advance, to ensure viability of resettlement plans.
207

CONTINUITY OF CARE AND PRISONERS
MOVING BETWEEN ESTABLISHMENTS
• LA where the prison is located
Persons in prison and approved premises
Moving to a prison in the same area
• Same LA where prison is located
• Either LA where living before imprisonment or area moving to on release
Leaving prison
Moving to prison in another area
• LA for area of prison being moved to
208

SECTION 76
The following provisions do NOT apply to persons in prisons and approved premises:
Section 31 to 33
– direct payments i.e. prisoners can’t have DPs
Section 42 – safeguarding enquiry by LA
Section 44 – safeguarding reviews in so far as the case relates to a period when the person was in prison/residing in approved premises;
Section 43(2) – SAB’s objective, but SAB can provide advice and assistance for the purpose of helping and protecting prisoners etc in its area that meet criteria in s42(1)
Section 47 – protection of property
209

OTHER POINTS:
• Prisoners, residents, staff in prisons are not to be regarded as carers for the purposes of the Care Act 2014 and so are not entitled to a carers assessment;
• Charging and financial assessments provisions also apply to prisoners
“light touch” assessments” where a person is unlikely to be able to contribute to the cost of their care;
• Equipment and adaptations – fixtures and fittings (e.g. grab rails, ramps) and more significant adaptations are responsibility of the prison
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Sections 58 – 66 of the Care Act and Chapter 16 of the
Statutory Guidance
CHILD’S NEEDS
ASSESSMENT
Sections 58-59
CHILD’S
CARERS
ASSESSMENT
Sections 60 - 62
YOUNG
CARERS
ASSESSMENTS
Sections 63 - 64
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What does “Significant benefit” mean?
Not defined in the legislation but the statutory guidance says that the local authority should consider the circumstances of the young person or carer and whether it is an appropriate time for the young person or carer to undertake an assessment which helps them to prepare for adulthood. It is not related to needs but the timing of the transition assessment.
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The consent condition is met if –
(a) the child/young carer has capacity or is competent to consent to a child’s needs/young carer’s assessment being carried out and the child/young carer does so consent, or
(b) the child/young carer lacks capacity or is not competent so to consent but the authority is satisfied that carrying out a child’s needs/young carer’s assessment would be in the child’s best interests.
Sections 58(3) and 63(3)
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FACTORS WHICH CONTRIBUTE TO ESTABLISHING
THE RIGHT TIME TO ASSESS
• Stage reached at school and any upcoming exams;
• Whether the young person wishes to enter further/higher education/training
• Whether they wish to get a job when they become an adult
• Whether they plan to move from parents to their own home;
• Whether they will be a care leaver when they become 18
• The time it may take to carry out an assessment
• The time it will take to plan and put in place adult care and support
• Any relevant family circumstances
•
Any planned medical treatment
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CHILD’S NEEDS
ASSESSMENT
S58-59
• Impact on matters in s1(2) i.e. components of wellbeing of what the child’s needs for care and support are likely to be after 18
• Outcomes child wants
• How provision of care and support could contribute to outcomes
CHILD’S CARER’S
ASSESSMENT
S60-62
• Whether carer able to care for child and likely continue to after child is
18
• Whether carer is willing to care and likely to remain so after child is 18
• Impact of matters in s1(2) on carer’s needs for support after child is 18
• Outcomes carer wants
• How support could contribute to outcomes
YOUNG CARER’S
ASSESSMENT
63-64
• Whether YC is able to care and likely to continue to after reaching 18
• Whether YC willing to care likely to continue to be willing after 18
• Impact of matters in s1(2) on YC’s needs for support after carer is 18;
• Outcomes YC wants
• How provision of support could contribute to outcomes
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CHILD’S NEEDS
ASSESSMENT
• Child
S58-59
CHILD’S CARER’S
ASSESSMENT
S60-62
• The carer
YOUNG CARER’S
ASSESSMENT
S63-64
• The young carer
• Child’s parents
• The young carer’s parents, and
• Any person whom the child or parent or carer of child requests the LA to involve
• Any person whom the carer asks the LA to involve
• Any person whom the young carer or a parent of the young carer asks the LA to involve
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CHILD’S NEEDS
ASSESSMENT – S58-59
• Parent includes a parent who does not have PR and a person who has PR but is not a parent
• On ‘child’ reaching 18
LA must decide whether to treat assessment as a needs assessment; if so Part 1 of Care Act
2014 applies as if it was carried out after person became 18
CHILD’S CARER’S
ASSESSMENT - S60- 62
• Power to meet child’s carer’s needs for support;
• In deciding whether to exercise this power the LA must have regard to any services provided to the carer under section 17 of the Children Act 1989;
• Carer means an adult(including a parent) who provides/intends to provide care for the child.
YOUNG CARER’S
ASSESSMENT – S63-64
• Young carer means a person under 18 who provides/intends to provide care for an adult;
• LA must give the YC an indication as to whether any of needs likely to have after reaching 18 will meet the eligibility criteria, and if so which ones
• Decide whether to treat the YC assessment as a carer’s assessment on their reaching 18
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Section 65(2) and (3) - combining/joining up assessments subject to the consent conditions being met:
EXAMPLE:
If assessing an adult who is caring for a 17 year old in transition and a 12 year old’s needs under section 17 of the CA 1989 can combine:
• Child’s needs assessment under s58 of the Care Act 2014;
• Any assessment of the 17 year old under s17 of the CA 1989 1989;
• Any assessment of the 12 year old under s17 of the CA 1989
• The child’s carer’s assessment under s60 of the Care Act 2014
• The parent carer’s needs assessment of the adult under s97 of the
Children & Families Act 2014
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TRANSITION ASSESSMENTS – OTHER MATTERS
If the local authority receives a request to carry out a transition assessment but decides not to do so it must:
•
Provide written reasons for not carrying out a transition assessment, and
• Provide advice and information about what can be done to prevent or delay the development by the young carer of needs for support in the future.
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TRANSITION ASSESSMENTS – OTHER MATTERS
Having carried out a transition assessment, a local authority must provide the child/child’s carer/young carer with:
•
An indication as whether any needs for care and support (child/young carer) or support (child’s carer) are likely to meet the eligibility criteria after child/young carer reaches 18 and if so which ones are likely to do so;
• Advice and information about what can be done to meet or reduce needs;
• Advice about what can be done to prevent or delay the development of needs for care and support/support in the future.
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TRANSITION AND CONTINUITY OF SERVICES
SECTION 66
• A local authority may not provide any care and support under this Part to meet a child’s or young carer’s needs in advance of their 18th birthday;
• Sections 66 of the Care Act inserts amendments to section 17 of the
Children Act 1989 to ensure continuity of services if on their 18th birthday, the necessary adult care and support is not yet in place;
• Where the child or young carer has previously been receiving services under section 17 of the 1989 Act or section 2 of the Chronically Sick and Disabled Persons Act 1970 , section 66 provides that the local authority must continue to provide those services until the relevant steps have been undertaken. This is to ensure no gap in provision during the transition to adult care and support.
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The Care Act 2014 and the Children and Families Act
2014 have similar statutory requirements which are relevant in the context of transition assessments and planning, including:
• Outcomes and wellbeing
• Provision of information and advice
• Joint commissioning
• Integration
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…..cnt’d
• Person centred practice
• Duty to co-operate with relevant partners, professionals, organisations both generally and in specific cases
• Direct payments
• Personal budgets
• Involvement of young people, their parents etc to be fully involved in assessments and making decisions about their care and support
• Identifying those with NHS and CHC
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Further reading:
• Part 3 of the Children & Families Act 2014
• Special Educational Needs and Disability Code of
Practice (in particular chapters 2, 3, 4 and 8)
• Children Act 1989 Guidance and Regulations,
Volume 3: Planning Transition to Adulthood for Care
Leavers
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• Sections 48 - 52 of the Care Act 2014;
• Schedule 1 of the Care Act 2014
• The Care and Support (Cross-border Placements and Business
Failure: Temporary Duty)(Dispute Resolution) Regulations 2014
• Chapter 5 of the Care & Support Statutory Guidance – Managing provider failure and other service interruptions’
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Section 48(2)
“A local authority must for so long as it considers necessary (and in so far as it is not already required to do so) meet those of an adult’s needs for care and support and those of a carer’s needs for support which were, immediately before the registered care provider became unable to carry on the regulated activity, being met by the carrying on of that activity, in the authority’s area by the provider.”
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When does the duty in section 48 arise?
• The provider is registered with the Care Quality
Commission;
• There is a business failure of a provider of care and support;
• The provider becomes unable to carry on the regulated care activity in question as a result.
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The duty in section 48(2) applies regardless of :
• whether the adult is ordinarily resident in the area of the local authority;
• whether the local authority has carried out the needs assessment;
• whether any of the adult’s needs meet the eligibility criteria.
Section 48(3)
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The duty to meet needs under section 48(2) applies so far as the authority is not already required to do so.
e.g. Where needs were being met by the provision of services paid for by an individual (i.e. self funders), or
Where another local authority was paying for services to meet the needs of an individual, or was making direct payments in respect of those needs.
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not
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Where the local authority is meeting needs under subsection (2), it is not required to carry out any of the assessments referred to in section 9
(needs assessment), 10 (carer’s assessment) or 17 (financial assessment) or to determine whether any of the needs meet eligibility criteria.
- Section 48(4)
This means the provisions in sections 9 to 13 and 17 are suspended for the temporary period during which the local authority is meeting needs under section 48.
This ensures that the temporary duty to meet needs applies regardless of the results of the relevant assessments so that the provision of a substitute service is not delayed and individuals are not left without the care they need.
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Recoupment
Where the individual whose needs the failed provider was meeting is not ordinarily resident in the area of the local authority which has the temporary duty to meet needs and was having their needs met under arrangements made by another local authority in England, or was having the care paid for by direct payments provided by such an authority, the local authority which has the temporary duty to meet must co –operate with the other local authority in meeting those needs and allows the local authority with the temporary duty to recover from the other authority the cost it incurs in meeting those needs during the temporary period.
Section 48(7)
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Section 48(8)
236

• The duty in section 48 applies equally if the needs the local authority must meet were, at the time the provider became unable to carry on due to business failure, being met under arrangements made by local authorities in Wales, Scotland or
Northern Ireland under legislation applying in those countries.
• English local authorities can recover from their counterparts in
Wales, Scotland or Northern Ireland the costs incurred in meeting the adult’s needs.
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239

Section 74 of the Care Act
• Gives effect to Schedule 3 of the Act
Schedule 3
•
Re-enacts the effect of the delayed discharges provisions of the
Community Care (Delayed Discharges) Act 2003 and relevant regulations.
The Care and Support (Discharge of Hospital Patients) Regulations
2014
• Sets out the detailed scheme for discharge of hospital patients with care and support needs and form of notices.
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MAIN CHANGES:
• amends the mandatory system of fining ("reimbursement"), where the local authority has not carried out its duties by the day of discharge, to a discretionary one.
• Also, in terms of reimbursement, the exemptions that previously existed for weekends will no longer apply and as such all days will be potentially reimbursable
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There are 3 types of notices the meaning of which are set out Schedule 3:
• The assessment notice - paragraphs 1(1) and (2) of Schedule 3
This will replace what is currently referred to as a “section 2 notice” pursuant to section 2 of the Community Care (Delayed Discharges) Act
2003
• The discharge notice - paragraphs 2(1) and (2) of Schedule 3
The NHS body has to give the local authority notice of when it intends to discharge the patient;
A withdrawal notice paragraph 1(5)(c) of Schedule 3
• A withdrawal notice applies in respect of assessment and discharge notices
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Where the NHS body responsible for a hospital patient considers that it is not likely to be safe to discharge the patient unless arrangements for meeting the patient's needs for care and support are in place, the body must give notice to —
(a)the local authority in whose area the patient is ordinarily resident, or
(b)if it appears to the body that the patient is of no settled residence, the local authority in whose area the hospital is situated.
Paragraph 1(1) of Schedule 3
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An assessment notice —
• (a) must describe itself as such, and
• (b) may not be given more than seven days before the day on which the patient is expected to be admitted to hospital.
Paragraph 1(2) of Schedule 3
244

Before giving an assessment notice, the NHS body responsible for the patient must consult —
(a) the patient, and
(b) where it is feasible to do so, any carer that the patient has.
Paragraph 1 (4) of Schedule 3
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An assessment notice remains in force until —
(a) the patient is discharged (whether by the NHS body responsible for the patient or by the patient himself or herself),
(b) the patient dies, or
(c) the NHS body responsible for the patient withdraws the notice by giving a notice (a “withdrawal notice”) to the relevant authority.
Paragraph 1(5) of Schedule 3
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The NHS body responsible for a hospital patient, having given the relevant authority an assessment notice, must —
(a) consult the authority before deciding what it will do for the patient in order for discharge to be safe, and
(b) give the authority notice of the day on which it proposes to discharge the patient.
A notice under (b) above is referred to as a discharge notice
Paragraphs 2(1) and (2) of Schedule 3
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Discharge notice must specify —
(a) whether the NHS body responsible for the patient will be providing or arranging for the provision of services under the
National Health Service Act 2006 to the patient after discharge, and
(b) if it will, what those services are.
Paragraph 2(3) of Schedule 3
248

A discharge notice remains in force until —
(a) the end of the relevant day, or
(b) the NHS body responsible for the patient withdraws the notice by giving a withdrawal notice to the relevant authority.
Paragraph 2(4) of Schedule 3
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The relevant authority, having received an assessment notice and having carried out a needs assessment and (where applicable) a carer's assessment, must inform the NHS body responsible for the patient —
(a)whether the patient has needs for care and support,
(b) (where applicable) whether a carer has needs for support,
(c) whether any of the needs referred to in paragraphs (a) and (b) meet the eligibility criteria, and
(d) how the authority plans to meet such of those needs as meet the eligibility criteria.
Paragraph 3(1) of Schedule 3
250

If the relevant authority, having received an assessment notice and a discharge notice, has not carried out a needs or (where applicable) carer's assessment and the patient has not been discharged by the end of the relevant day, the NHS body responsible for the patient may require the relevant authority to pay the specified amount for each day of the specified period.
Paragraph 4(1) of Schedule 3
251

If the relevant authority has not put in place arrangements for meeting some or all of those of the needs that it proposes to meet in the case of the patient or (where applicable) a carer, and the patient has for that reason alone not been discharged by the end of the relevant day, the NHS body responsible for the patient may require the relevant authority to pay the specified amount for each day of the specified period.
Paragraph 4(2) of Schedule 3
252

What is the “relevant day”?
The relevant day is the later of
—
(a) the day specified in the discharge notice, and
(b) the last day of such period as regulations may specify
Paragraph 2(5) of Schedule 3
Regulation 8 of the Care and Support (Discharge of Hospital Patients)
Regulations 2014 states that “relevant day for the purposes of a discharge notice is the period:
(a) beginning with the day after that on which the assessment notice is given or treated as given in accordance in regulation 11; and
(b) ending two days after this date.
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The Care and Support (Discharge of Hospital Patients)
Regulations 2014 makes provision for:
• the form and content of the assessment and discharge notices;
• when a discharge notice may be given;
• when a withdrawal notice by an NHS body to a local authority in relation to an assessment or discharge notice must be given;
• the minimum period of service for a discharge notice i.e. not less than one day in advance of the proposed discharge date ;
• how the delayed discharge period is calculated;
• the amount of the delayed discharge payment;
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The Care and support (Discharge of Hospital Patients) Regulations
2014 makes provision for (cntd)
• the day on which assessment and discharge notice is to be regarded as given;
• the ordinary residence provisions which specify that a LA to which an assessment or discharge notice is given must accept that notice and be required to undertake the duties in relation to that patient notwithstanding that it may dispute that patient’s ordinary residence.
The LA which has wrongly been given an assessment notice can claim reimbursement for any delayed discharge payment it has paid in that case from the LA in whose area the patient is later agreed or determined to be ordinarily residence.
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258

Department of Health Fact sheets on the Care Act 2014 can be accessed at: https://www.gov.uk/government/publications/care-act-2014-part-1factsheets .
Local Government Association Website:
http://www.local.gov.uk/care-support-reform
Skills for Care: http://www.skillsforcare.org.uk/Standards/Care-Act/Care-Bill.aspx
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Social Care Institute for Excellence – resources on the Care Act 2014 http://www.scie.org.uk/care-act-2014/
The Care Act 2014 can be accessed at:
http://www.legislation.gov.uk/ukpga/2014/23/contents/enacted
The regulations and guidance can be found here:
https://www.gov.uk/government/consultations/updating-our-care-andsupport-system-draft-regulations-and-guidance
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