Here to help with questions relating to learning disability and its impact on family carers
The Care Act 2014 became effective on the 1st April, although some parts like the increase in exemption limits, won’t take effect until 2016.
The Government has launched its promotional “The Care and Support of you” campaign to inform the public of their new rights. Many readers might have heard the radio adverts or received one of the 2.5 million leaflets, which the Government has distributed
The purpose of this article is to provide Rescare’s interpretation of the impact of the Care Act and in particular, how it will affect carers.
This article will deal with Eligibility and Assessment. The autumn edition of Resnews will deal with Carer’s entitlements, Direct Payments, Personal Budgets and Ordinary Residence. The winter edition will deal with the changes to the exemption limits, (cap on costs) before they take effect next April.
WHAT DOES THE CARE ACT APPLY TO?
The Care Act applies to social care which does not include education, housing or health needs, although there will be overlaps, particularly on health needs.
Whilst social care does not include housing it does include :
a) the care which is provided in a care home, or similar premises.
b) care and support at home or in the community
c) counselling and other types of social work
d) goods and facilities
e) information advice and advocacy
To qualify for social care under the Care Act an adult must meet certain eligibility conditions.
The Care Act will only apply to an adult after either the local authority has conducted a review, or April 2016, whichever is the earlier.
There are three eligibility conditions:
1. ILLNESS AND INCAPACITY
An adult’s need must arise from, or be related to physical or mental impairment or illness. This means that a local authority must consider whether an adult has a condition as a result of either physical, mental, sensory, learning or cognitive disabilities or illnesses, substance misuse or brain injury.
An adult must be unable to achieve two or more of the ten outcomes, which are:
a) managing and maintaining nutrition – does an adult have access to food and drink to maintain nutrition and can the adult prepare and consume the food
b) maintaining personal hygiene
c) managing toilet needs
d) being appropriately clothed – is the adult able to dress themselves and in an appropriate manner, for example warm clothing on cold days
e) being able to make use of the home safely – can the adult move around the home safely, e.g. ascend steps or stairs, use a kitchen and bathroom also includes access to the house e.g. steps to the front or back doors.
f) maintaining a habitable home environment – is the home in a sufficient state of cleanliness and maintenance to be safe, does it have essential amenities, water, electricity and gas.
g) developing and maintaining family or other personal relationships
h) assessing 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.
The statutory guidance which accompanies the Care Act provides examples of how local authorities should consider each outcome, when determining eligibility for social care.
Being unable to achieve any of the 10 outcomes means any of the following circumstances, where the adult:
i) Is unable to achieve the outcome without assistance, which would include inability, even when there is assistance. This includes where an adult needs prompting, e.g. an adult is able to wash, but has to be reminded of the importance of personal hygiene.
ii) Is able to achieve the outcome without assistance, but in the process experiences significant pain, distress or anxiety. An example is where someone with severe arthritis prepares a meal, but as a consequence experiences severe pain, which means they can’t eat the meal.
iii) Is able to achieve the outcome without assistance, but in the process endangers or is likely to endanger the health and safety of the adult or others. This could include causing fire hazards in the kitchen, which means that support is necessary.
iv) Is able to achieve the outcome without assistance, but takes significantly longer than would normally be expected. An example would be where it takes someone with a physical disability an hour to dress themselves and because of resultant fatigue, they can’t do anything else.
Local authorities must consider an individual’s need over an appropriate period of time, because needs can fluctuate and may not be apparent at the time of the assessment. An example is mental illness which someone might manage for several months, but then be unable to manage due to a change in external circumstances.
Does the person’s inability to achieve the outcomes cause, or risk causing a significant impact on their wellbeing? An individual’s wellbeing includes any one or more of the following:
a) Personal dignity (treat with respect)
b) Physical and mental health and emotional wellbeing
c) Protection from abuse and neglect
d) Control over daily life which includes care and support provided to the person
e) Participation in work education and training
f) Social and economic wellbeing
g) Domestic family and personal relationships
h) Suitability of living accommodation
i) Individual’s contribution to society
WHAT HAS CHANGED ON ELIGIBILITY?
The eligibility criteria are national and set out a minimum threshold for adult care and support needs and also carer support needs. All local authorities must comply with the minimum threshold. Authorities can, at their discretion, meet needs that are not eligible under the minimum threshold. Opinions vary on whether the criteria are looser and now cover moderate needs, or whether they are tighter than under pre Care Act Law.
The Care Act has introduced greater clarity on eligibility. Authorities cannot opt out because of the need to make savings, however large.
Local authorities must undertake an assessment for any adult with an appearance of need for care and support, regardless of whether or not the local authority thinks the individual has eligible needs, or of their financial situation.
If an adult received social care before April e.g. care in residential premises or for supported living, they will continue to receive that care until the authority conducts a review.
If an adult does not currently receive social care, or the care is inadequate for their needs, then they should inform the authority. The authority will then have to ensure that they have established the impact of the need on the individual’s daily life, by reference to the eligibility conditions.
The authority must also consider whether needs impact upon an individual’s wellbeing, beyond what the individual identifies.
During an assessment, authorities must consider all an adult’s care and support needs, regardless of support provided by a carer.
Many readers will provide significant levels of care to enable their family member or relative to function. On an assessment the authority has to consider how an adult would function, without the carer’s support.
An authority does not have to meet needs which a carer provides and who is willing and able to do so. The authority should record the care which the carer provides, so they can identify all the adult’s needs. This also means that if a carer for any reason, is unable or unavailable to provide all, or any part of the care they previously provided, then the authority can replace that carer.
1. Advance Notice
To enable an adult and where appropriate, a carer, prepare for the assessment, the local authority should prepare in advance and in an accessible format the list of questions to be covered by the assessment.
Assessment can cause considerable anxiety for both the adult and the carers. Authorities should consider an individual’s preferences about timing, location and form of an assessment.
3. Pause in the Process
An early intervention can delay an adult’s needs from increasing. This could be particularly relevant where there is physical disability and a household adaptation or some equipment could meet a need. There may be a pause in the assessment process to enable a targeted intervention to occur and for the impact to be determined.
4. Assessor’s qualification
● Assessors on behalf of the authority do not have to be qualified social workers. They do have to have received appropriate training. The training should enable assessors to direct individuals towards support services, advice and preventative services. It should also enable an assessor to identify lack of mental capacity and act accordingly.
● Registered social workers and occupational therapists can provide support and may be involved in more complex assessments where there is a wide range of needs and which may require a multi-agency response.
● If an assessor does not have the necessary knowledge of a particular condition or circumstance, they must consult someone who has relevant experience. This means that on an assessment of someone with learning disability the assessor should consult a doctor, or health professional, if they don’t have sufficient knowledge of learning disability.
5. Mode of Assessment
Whilst assessments can be carried out over the phone, or online, if there is concern about capacity, due for example to mental health needs or learning disabilities, they the authority should arrange a face to face assessment.
6. Supporting Involvement
An authority must involve the person being assessed in the process, as they are best placed to judge their own wellbeing. If an adult lacks capacity, or has existing care and support needs, then the authority must involve any carer, or carers. The authority must also involve anyone whom the person to be assessed, or their carer, has requested. This could be an informal advocate who could be Rescare, another voluntary organisation, a friend of the family with relevant knowledge, like a doctor, or anyone else.
In order to fulfil their duty to support involvement, authorities need to determine at the start of the assessment process whether someone would have difficulty with the assessment, care and support planning or the review process. If they determine that the person will have difficulty, the authority must find someone appropriate and independent to support and represent the person, in order to facilitate their involvement. This could be a family member, or friend, providing they are willing and able. They would have to be acceptable to the individual and the authority. If there is no one available, because for example, family members don’t feel able to participate in the process, or the person doesn’t want them, then the authority must appoint an independent advocate. The authority would have to pay the advocate, but independent means the advocate cannot be an employee or contractor of the authority.
8. Supported Self Assessment
This is an assessment carried out jointly by the adult with the needs and the authority. The adult will complete the assessment form, but the authority still has to assess the needs. Not only does the adult have to be willing to undertake a supported self assessment, but they must also have capacity. This means that supported self-assessment could be inappropriate for many people with a learning disability.
9. Refusal of assessment
If an adult with capacity refuses an assessment, then that refusal will discharge the authority from its obligations. The authority still has to carry out an assessment if the adult lacks capacity to refuse an assessment and an assessment would be in the adult’s best interests, or the adult is experiencing, or is at risk of, abuse or neglect.
The authority has to determine whether an adult’s needs meet the eligibility criteria. Once they have made their decision, the authority must give the adult a written record of the determination and the reasons. The authority must also give a copy of the written record to any relevant carers, or if the adult requests the authority must give a copy of the decision to any carer or other person e.g. informal advocate, attorney.
11. After the Decision
If the authority determines that an adult has some eligible needs then it must:
● Agree with the adult which needs they would like the authority to meet. An adult might, for example, prefer a carer to continue to provide for their needs, but the carer might be elderly or have deteriorating health. In such instances, the authority will know what the needs are, when a carer can no longer provide them.
● Establish whether the person meets the ordinary residence requirement. The autumn edition of Resnews will provide guidance on ordinary residence.
If the authority has to meet needs then it must:
● Prepare a care and support plan or support plan for an adult.
● Inform the adult which if any, of the needs it will meet by direct payments.
● Help the adult in deciding how to meet the needs.
Whilst the Care Act will not provide local authorities with more money for adult social care and there will be a further cut of £1.1 billion to adult social care budgets this year, the National Audit Office has reported that 99% of authorities are confident that they can carry out the Act reforms as from April. There is a danger though that the Department of Health may have under estimated the demand for assessments and services for carers.
Rescare’s staff have participated in extensive Care Act training and will be happy to answer any queries on the Care Act and assist readers with assessments. If you need assistance please contact the helpline or e-mail and future editions of Resnews will provide more information.
The autumn edition of Resnews will provide guidance on care and support plans and direct payments.
In the last edition of Resnews we promised to deal with the changes that the Care Act had made to the rights of carers.
The Care Act has improved the rights of carers to receive support, through a Support Plan. Support no longer depends on the actual amount of care that a carer provides, but instead depends on the impact that the provision of care has on the carer and the carer’s needs.
The amount of care that a carer provides is still relevant to determine the amount of support that a carer will receive.
There are 3 eligibility provisions for a carer to satisfy in order to receive support, which are:
1. Provision of Care
A carer’s needs must arise because they provide necessary care for an adult. Necessary care does not have to be provision for the adult’s eligible care needs, (as described in the last edition of Resnews).
2. The effect on the carer of the care they provide is that one of the following applies to the carer:
a) The carer’s physical or mental health is, or is at the risk of deteriorating.
b) The carer is unable to achieve any one of the following outcomes
○ Carrying out any caring responsibilities a carer has for a child, which not only include parenting, but responsibilities for other children, e.g. caring for grandchildren
○ Providing care to other persons, e.g. in addition to caring for an adult child, a carer may have caring responsibilities for an elderly parent, or other relative
○ Maintaining a habitable home environment, is the carer’s home safe and is it an appropriate environment to live in, e.g. does it have basic amenities
○ Managing and maintaining nutrition, e.g. does the carer have time to shop and prepare meals for themselves and their family
○ Developing and maintaining family, or other significant relationships, e.g. provision of care can impose stress on family relationships and can also result in social isolation
○ Engaging in work, training, education, or employment by a third party, e.g. can the carer combine paid employment with caring, can they train for employment, or even volunteer
○ Make use of necessary facilities, or services within the local community, e.g. health clinics
○ Engage in recreational activities, e.g. can the carer enjoy a walk in the local park, attend classes, visit the cinema
3. As a consequence of a deterioration in mental or physical health, 2 a) above, or an inability to carry out any one of the outcomes described in 2 b); there is likely to be a significant impact on the carer’s wellbeing.
If whilst carrying out an adult’s or carer’s assessment, it appears that a child provides care then the local authority must consider:
a) The impact of the adult’s needs on the young carer’s wellbeing, welfare, education and development
b) Whether the young person carries out any inappropriate caring responsibilities for the adult
A young carer, or someone on their behalf, can request a transition assessment. When a young carer becomes an adult, they could become a carer under the provisions of the Care Act. The purpose of a transition assessment is to determine whether the Care Act would apply to the young carer when they become an adult.
If an assessment of a carer’s needs determines that the needs are eligible and the adult for whom the carer provides care is ordinarily resident in the local authority’s area, then the carer will have a legal entitlement to receipt of a budget or services from the local authority.
The local authority will have to prepare a support plan for the carer, which will:
a) Specify the needs identified by the assessment
b) Whether and if so, to what extent the needs meet the eligibility criteria
c) Specifies the needs which the authority will meet and how it will meet them
d) Includes advice and information about what can be done to meet or reduce the needs and prevent or delay the development of needs for care and support
In preparing the support plan, the local authority must involve:
a) the carer
b) the adult who needs care, if the carer requests their involvement
c) any other person whom the carer asks the authority to involve
Many people who are carers may not currently receive any support from their local authority, a situation which may apply to some readers. Rescare’s advice is to consider whether any of the eligibility conditions referred to in 1 and 2, under Eligibility, above, apply. If they do, is there an impact on the carer’s wellbeing, as described in 3. In the likely event that there is an impact on wellbeing, then there is a right to an assessment.
Rescare’s advice to anyone who provides care for an adult, is to apply for an assessment to the local authority, if the authority don’t provide support. Even if the authority do provide support, it may be inadequate, so apply for an assessment.
The next edition of Resnews will deal with personal budgets, direct payments and ordinary residence. If any reader requires further information about the Care Act, or advice on how it might apply to them, or to those they care for, then please contact the office.
The article, Care Act Part 2, in the September edition of Resnews, promised that this edition would deal with personal budgets, direct payments and ordinary residence. The article on personal budgets appears on pages 5&7 of this edition and it includes direct payments. This article will deal with care planning, which will include budget adequacy, direct payments and mental capacity in the context of care planning. Unfortunately time and space mean that commentary on reviews, revisions and ordinary residence will appear in Care Act Part 4, in the spring 2016 edition of Resnews, along with the local offer.
A number of our Welsh members have asked whether the law is different in Wales. The Welsh Assembly will introduce their own version of the Care Act next April and there will be differences. We will send a separate commentary on the Welsh version of the Care Act, by post to all our Welsh members early in the New Year.
A local authority can take into account its own finances and budgetary position when it determines how to meet assessed needs, so it can choose a cheaper option, but it has to meet those needs in an appropriate, suitable and reasonable manner. Authorities try to get round this requirement on the assessment process, so ensure that they assess all needs in accordance with the guidance referred to in Parts 1 and 2 in previous editions of Resnews. Do bear in mind that local authorities can now increase Council Tax by up to 2% to pay for adult social care. They may not want to for political reasons, but they have legal duties when they set a personal budget. There must be transparency, so carers know how the budget has been calculated. They have to set the budget in a timely manner, so no delays and it must be sufficient to meet assessed needs.
Local authorities may be reluctant to agree direct payments, because they are more expensive that the authority buying the service. Authorities need to remember that a direct payment can promote well-being because they enhance control over day to day life. They should only refuse a direct payment if there it is significantly more expensive than providing the service themselves. There is more detail on direct payments on pages 5&7.
MENTAL CAPACITY ACT
Authorities have to plan care and support plans in the individual’s best interests,
The individual’s wishes and feelings will be an important element in determining what is in their best interests and that includes opposition to a course of action that might benefit them.
To quote an extract from a Court judgment:
“Physical health and safety can sometimes be bought at too high a price in happiness and emotional welfare. What good is it making someone safer if it merely makes them miserable ?”
If any reader requires help with Care Act assessments, personal budgets and direct payments, then please contact the office.
Ordinary residence and transfer of residence: Rescare has received enquiries from members about local authority responsibilities when someone moves. The Care Act sets out the respective duties of local authorities when someone moves, which is based upon where someone is ordinarily resident.
The simplest way to explain the rules is to use a hypothetical example and I must stress that the names and places are entirely fictional and bear no relationship to any query that Rescare has received.
Mr and Mrs Smith live in Milton Keynes. Their son John is 25 and has severe learning difficulties. John cannot live at home, nor can he live in the community, even with support. Since he was 19, John has lived in a residential home, but as there were no suitable homes in Milton Keynes, he has lived in a home in Luton. Because John lived with his parents in Milton Keynes, before he moved to the home in Luton, the Care Act provisions state that his ordinary residence is Milton Keynes. Milton Keynes Council, not Luton, will be responsible for the costs of the residential home.
Mr and Mrs Smith then decide to move to Norwich, but their move would not affect John’s ordinary residence. Norwich Council would not take over the responsibility to pay for John’s care in Luton as his ordinary residence would still be Milton Keynes.
If Mr and Mrs Smith wanted John to move to a care home in, or close to their new residence in Norwich, that would not affect John’s ordinary residence in Milton Keynes. Complications would arise if the cost of a care home in Norwich was greater than the cost of the care home in Luton, as Milton Keynes might be reluctant to pay the additional costs. In those circumstances Milton Keynes might want to re-assess John’s needs, to determine whether he still requires the specialist care.
If John moved out of the care home to live with his parents in Norwich, or into supported accommodation in Norwich, then he would become ordinarily resident in Norwich and Norwich Council would then take over responsibility for his care. This would invariably result in a re-assessment and previous articles in Resnews have covered the assessment process.
Where an adult who receives a care and support package from an authority, moves to another authority, then they should notify that authority. To use the hypothetical example again, this time John either lives with his parents, with support from Milton Keynes, or in supported accommodation and moves with his parents to Norwich. He or his parents would notify Norwich, and Norwich, once satisfied that the intention to move is genuine, would contact Milton Keynes, who would be obliged to forward all relevant details. These details would include copies of care and support plans, personal budgets and anything else relevant to the support that John receives.
Norwich would have to continue support at the same level as Milton Keynes after John had become ordinarily resident there, until they had carried out their own assessment, which would have to include John and his carers.
If Norwich’s assessment determines that John’s needs differ from those that Milton Keynes provides, or that the cost of meeting the needs differs, then Norwich would have to provide a written explanation to both John and his carers.
There is a dispute resolution procedure. Rescare is aware of a case where someone moved to another authority and that authority reduced the value of the care package by 75%. Apparently the matter is now with the courts.
Reviews and Revisions: By the end of March all councils should have conducted an assessment for all adults who have a current plan, by which they receive financial support. The assessment should be under the new eligibility criteria, under the Care Act, which we summarised in July 2015 edition of Resnews.
If an adult, or carer on their behalf, receives direct payments, then the regulations require an annual spending review, which again is an obligation on the local council.
If there are no direct payments, then a service user, or carer on their behalf can request the council to conduct a review, which should cover the following:
● Any change in a person’s circumstances, or care and support needs
● Does the Care and Support Plan (Plan), achieve the outcomes that it is supposed to
● Are there new outcomes, or could a change to the Plan lead to better outcomes
● Is the personal budget sufficient to meet assessed needs
● Should direct payments be considered
● Have there been any changes to community support networks, like day support, or college placements
● Is there a safeguarding risk, e.g. someone else moves into a supported living environment who could present a risk
● Is the person, carer, or advocate happy with the Plan
The council should provide information on how to request a review and the process should be accessible.
If they refuse to conduct a review, then they need to provide reasons for their refusal and also indicate when they will conduct a review.
If a review results in a change to a Plan, then that is a revision and matters that might prompt a revision include:
● The person’s needs have either increased, or decreased
● There has been a change in informal support, e.g. a relative who provided support has moved, or is too ill
● A new person arrives in a home or supported living environment, see safeguarding above
● New equipment is available, e.g. warning device
● A person can no longer afford to purchase top-up services
● Loss of community based services, e.g. closure of day centre
A council needs to follow care planning principles, which include:
● Consideration of a person’s wishes and feelings
● The revision should be proportionate to the needs
● If there are other relevant plans then they should be considered on a revision
● A person, or carer should be allowed to self-plan in conjunction with a local authority
● Revisions must involve the adult and/or carer and anyone else the adult wishes to involve
Readers need to be aware that councils can cut support in a Plan if the following apply:
● Changes to national eligibility thresholds
● Dependency has diminished, e.g. new carer, spouse, adaptation, person has money which they want to use to meet needs
● Need has genuinely gone, e.g. recuperation which enables more independence
● Previous provision was too generous
● There is another way to meet the same need
● Meeting a need keeps someone dependent when they could be more independent
If any of the above applied, then a council would have to provide a full explanation: they can’t act arbitrarily.
Local Offer: Councils have a duty to provide information about care and support arrangements in their locality. This duty extends to information on how to access support and the extent of the available support and services providers, so users can make informed decisions. In addition, Councils should provide information about independent financial advice and how to raise safeguarding concerns.
Councils have to provide information in different formats. It won’t be sufficient for them to post information on a website, they need to provide hard copies for people who don’t want to go online.
Councils have a duty to promote a market for the provision of services, so service users will have a variety of providers and services to choose from, as well as the information.
The Local Offer may also include funds to enable Councils to provide preventative services. These could include enablement services, for example.
Provider Failure: The Care Act imposes a temporary duty on Councils to provide care, if a registered provider ceases trading because of financial difficulties. Readers may recall that there has been publicity during the last few years about providers ceasing trading and leaving residents in care homes in a vulnerable position. Councils have to step in on a temporary basis to maintain continuity of care.
The Care Quality Commission also has a duty to assess the financial sustainability of registered providers and take action if there is a risk of business failure and inform the local Council.
Conclusion: On the 1st April the Care Act will have been in force for 12 months’ and Rescare would be interested to hear about reader’s experiences. Some members have already been advised about Care Act assessments, but experiences may vary between different Councils. If you have concerns about care arrangements, like safeguarding for example, then you might want to be pro-active and request a review. You might also want to check the Local Offer.
In April changes to financial contributions will take effect and the summer edition of Resnews will describe these in detail.
Please contact us if you need any help with the Care Act on any of the matters referred to in this article, or the previous three.