THE CARE ACT Nicola Greaney Benjamin Tankel

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1 THE CARE ACT 2014 Nicola Greaney Benjamin Tankel Background 1. The Care Act adopts and implements many of the recommendations of the Law Commission on Adult Social Care 1 (published 11 May 2011). It is the largest single piece of community care legislation since the great Beveridge reforms of 1948, sweeping away and re-codifying more than 50 years worth of law and policy. It is a lengthy and highly prescriptive Act, running to over 200 pages. 2. Notwithstanding all of this, save for a few notable exceptions discussed in more detail below, the Care Act does not fundamentally alter the substantive law. Under the existing law a local authority must, boiled down to essentials, carry out an assessment of those appearing to it to be in need of care and support; determine the provision that is necessary to meet those needs; and then make that provision. That basic structure is retained in the Care Act. 3. Rather, the Act s principal aim is to bring together many of the existing provisions in the current law, which have until now been diffused across a complicated patchwork of statutes, regulations, and statutory guidance. To that end, the Care Act will sweep away, amongst others, the National Assistance Act 1948, the Chronically Sick and Disabled Persons Act 1970, the Health and Social services and Social Security Adjudications Act 1983 (commonly known as HASSASSA ), the NHS and Community Care Act 1990, and the Health and Social Care Act 2001 (which introduced direct payments for the first time). 4. Even within this limited brief, the Government has not taken up one of the Law Commission s key recommendations, which was for there to be a single piece of legislation, accompanied by a full Code of Practice. The Care Act in fact leaves much of the detail to be worked out in regulations and/or guidance. It is likely that 1 Available at 1

2 practitioners will still have to look at a variety of sources in order to apprehend the full scope of community care law. It is also likely that they will not notice very much real change in the substantive law. Basic architecture and vocabulary of the Act 5. The Act requires local authorities to carry out needs assessments for adults who appear to it to be in need of care and support. Needs must be met if they meet new, national, eligibility criteria, which are to be contained in regulations. The new criteria are intended in substance to replicate the existing criteria within the Fair Access to Care Services (FACS) Guidance. LAs have a duty to set out an adult s needs, and how they will be met, in a care and support plan. The Act also creates a very similar set of duties for carers. 6. The Act introduce a cap on care costs, which will limit the amount any individual has to self-fund their care needs during their lifetime. Where the LA arranges a self-funder s care and support, the costs of doing so will be set out in a personal budget. Where a self-funder arranges their own support, the LA will set out how much it would have cost had the LA arranged the support in an independent personal budget. The total will be recorded in a care account, uprated each year for inflation. 7. The Act contains a large range of other duties and powers and these, together with the above, are set out in detail below. Key provisions and the structure of the Act 8. Sections 1-7 create a set of guiding principles for the provision of adult social care, by imposing a series of general duties on local authorities: Section 1 creates a general duty on local authorities exercising community care functions to promote the well-being of the individual; Section 2 imposes a general duty on local authorities to provide, or arrange for the provision of, services which will prevent, delay and reduce the need for support of adults and carers in its area. This 2

3 expansion in the scope of a local authority s responsibilities is not (at least at present) to be matched by a concomitant increase in funding. Given current budgetary constraints, it may be that the imposition of this general duty has little practical effect; Section 3 requires local authorities to exercise their community care functions with a view to integrating the provision of care and support with the provision of health, and health-related, services. This new duty is to be accompanied by a Better Care Fund 2 ; Section 4 obliges local authorities to produce certain information and advice in relation to adult social care including, importantly, information as to how to access independent financial advice; Section 5 requires local authorities to promote a market in services. This is intended to reverse the perceived trend of decreasing quality in care homes and other services, caused at least in part by underfunded local authorities dominating the market and forcing fees down. There is some potential for the new section 5 duty to give rise to a new wave of care home fees litigation; Sections 6 and 7 impose a duty on local authorities, NHS bodies, the police, probation officers and other prescribed public bodies to cooperate with each other in the exercise of their functions both at the general level, and in response to specific cases Section 7 in particular gives social services a new power to request assistance from health or housing authorities, with a corresponding duty on the latter to comply unless to do so would be incompatible with its duties, or have an adverse effect on the exercise of its functions. 2 Section 121 of the Care Ac amends s.223b of the NHS Act 2006 to enable the Secretary of State to make the payments he makes to the NHS Commissioning Board conditional upon, amongst other things, the relevant NHS body having a pooled fund with its local authority, aimed at easing pressure on NHS acute beds. 3

4 9. This collection of sections reflect the current practice of draftsmen of opening social-care type legislation with guiding principles: see, for example, the opening sections of the Children Act 1989 or the Mental Capacity Act It remains to be seen whether this set of principles will have any bearing on the outcome of individual cases. 10. Section 8 sets out an illustrative list of the types of services that could meet eligible assessed needs: accommodation in a care home or premises of some other type; care and support at home or in the community; counselling and other types of social work; goods and facilities; and information, advice, and advocacy. It is far more general than the equivalent service list in s.2 of the Chronically Sick and Disabled Persons Act In response to a question by the Select Committee scrutinising the legislation posed to the Department of Health, the latter stated that it considered that services of the type listed in s.2 CSSPA 1970 such as travel, holidays, and adaptations would be covered by s Sections 9 to 12 are the provisions relating to assessment, replacing s.47 NHSCCA The trigger for assessments (now called needs assessments ) is Where it appears... that an adult may have needs. Despite slight differences in wording, this is substantially the same as the existing s.47 NHSCCA Thus, as is currently the case, there is no need for anyone to have requested an assessment. Section 9(3) provides that the duty to assess applies regardless of the authority s view of (a) the level of the adult s needs for care and support, or (b) the level of the adult s financial resources. This effectively puts on a statutory footing the current position pursuant to the common law and statutory guidance. The combination of these points, and their codification into statute, means that there will continue to be a very low threshold for assessments. 12. The Act is highly prescriptive as to the content of assessments. Whereas previously there was minimal input from primary legislation as to the content of assessments, the Care Act now sets out in section 9(4) a detailed list of the matters to be covered. Currently, assessments are usually divided into similar sections, and so in practice there should be relatively little change in practice. The 4

5 assessment must involve the adult and any carer, so the likelihood is that a faceto-face interview will be required in every case. 13. Section 12 envisages that regulations will be passed which provide much greater detail as to the assessment process. No draft regulations have been produced yet. 14. There also appears to be a desire for a change in the practical role of assessments. The DoH s June 2013 Discussion Document says at 1.8 that: Assessments will remain an integral part of the system, as they are now. However, rather than acting primarily as a gateway to the adult either receiving care and support or not, the future system will place more emphasis on the role of the assessment process in supporting people to identify their needs, understand the options available to them, plan for meeting care needs and for caring responsibilities and reduce or delay needs where possible. 15. One of the significant changes in the new legislation is a focus on carers. Section 10 provides a detailed framework for carer s assessments, which brings them much closer to assessments for people who are themselves in need of care and support. The new duty arises where it appears that a carer may need support currently or in the future. This expands the scope of the duty: it is no longer necessary that carers already provide or intend to provide a substantial amount of care on a regular basis. The Government estimates that there will be up to 250,000 extra carers assessments each year (ie above the current 400,000 a year). 16. The carer s assessment must ascertain: whether the carer is able/willing to provide and continue to provide the care; the impact on the carer s well0being; the outcomes the carer wishes in day-to-day life; and whether the carer works or wishes to participate in education, training, or recreation. 17. Section 11 deals specifically with the position where a person refuses an assessment or carer s assessment. In such cases the local authority will not be required to assess, subject to two exceptions: (1) where the person lacks capacity and an assessment is in their best interests; and (2) where the person is experiencing, or is at risk of, abuse or neglect. Compare existing case-law, which held that a local authority should not necessarily take a person s refusal to be 5

6 involved in the assessment process as the final word on the matter, and that LAs needed to be persistent to ensure that vulnerable people are not unwisely leaving themselves at risk: e.g. R v Kensington & Chelsea LBC ex p Kitjim, R(J) v Caerphilly CBC, and R(M) v Hammersmith & Fulham LBC. 18. Section 13 provides that there will be national eligibility criteria set by regulations. This will finally put the position established by R v Gloucs C, ex p Barry on a statutory footing, and will establish national standards for local authority care support. It will also, presumably, end the current situation where some local authorities have limited themselves to only critical needs, or seek to establish new bands of super-critical needs to further limit social care provision. 19. Draft regulations accompanying the Act make the proposed eligibility criteria very similar to the current criteria, save only that the existing bands (critical, substantial, moderate, and low) and replaced with a single, two-limb test: whether (1) the person is unable to carry out a basic activity; and (2) the consequence is a significant risk to that person s well being. The aim according to the DoH s discussion document of June 2013 is to approximate the existing substantial and critical threshold operated by the vast majority of local authorities. 20. Local authorities will still be entitled to be more generous than the national eligibility threshold: it creates a minimum and not a maximum. 21. Local authorities will now need to determine whether to alter their existing eligibility criteria to bring them into line with the new regulations. This gives rise to an interesting question as to whether they will need to consult and/or comply with their public sector equality duty in taking such decisions. One possible view is that LAs will not need to consult or to comply with their PSED if they are making no change to the substance of their provision, but conversely that they will need to do so if they are making a change to their substance (including where they are increasing coverage). 22. Another view is that LAs will need to consult and/or consider their PSED even where they already provide for substantial and critical needs, on the grounds that 6

7 they could have gone wider than the national eligibility threshold requires. Moreover, some commentators have opined that, notwithstanding the intention of the DoH, the proposed new criteria place the threshold of entitlement closer to the existing moderate band than the substantial band. If that is right, then there may be scope for fixing LAs with a duty to consult and/or consider their PSED when the new national eligibility criteria are adopted. 23. Sections 14 enables local authorities to charge for the cost they incur in providing social care support services under s.8. The detail will be set out in regulations. CRAG will cease to apply but it is likely that something similar will replace it, subject to the changes in the capital rules outlined below. 24. Sections 15 and 16 introduce perhaps the most spoken-about change to the community care regime: the cap on care costs, derived from the 2011 Report of the Commission on Funding of Care and Support (the Dilnot proposals ). The current position on charging for services is set out in guidance, with a statutory longstop provision that charges must be no more than is reasonably practicable for the individual to pay, in order to insure against crippling care costs. Even so, approximately 25,000 people per year are forced to sell their homes in order to fund their social care costs. 25. The Dilnot reforms will introduce a lifetime cap of 72,000 on self-funded costs, after which the local authority is required to assume responsibility in all cases. In order to calculate when the cap is reached, local authorities will keep a care account of all care costs incurred by the self-funder. The self-funder need simply have their needs assessed by the local authority, and then either allow the local authority to commission their care (the cost of which they will then reimburse), or implement for themselves a care and support plan developed by the local authority (the cost of which they will pay directly). Once the cap is reached, the local authority will become responsible for the payments. 26. The figure will only apply to social care costs. Further, it is proposed that, for care home residents, 12,000 per year of their fees will be deemed to be daily living costs and thus disregarded. To put the level of the cap in context, it would take 7

8 around 5½ years, and a spend of over 135,000, for a person in a 25,000-peryear care home to reach the cap. 27. There will also be significant changes to the existing capital limits. The threshold will rise from 23,750 to 118,000 where a home is taken into account, and to 27,000 if it is not. The lower capital limit will also rise, to 17,000. As at present, every 250 above the lower limit will continue to produce a notional income of 1 per week, meaning that someone with over 118,000 savings who seeks local authority assistance will still have to contribute 20,000 per annum from the capital, and at the same time lose their DLA/attendance allowance component (because they are not supported by the local authority). 28. The reforms can be viewed in two ways. On the one hand, they have the worthy aim of insuring the public against catastrophic care costs. They have been unanimously welcomed by those in the third sector, albeit with the concern being expressed by some that the cap is too high. 29. On the other hand, they will create an enormous bureaucracy with a disproportionately small benefit. They effectively offer a free insurance policy to a few relatively wealthy self-funders. As such, more self-funders are likely to request assessments, with the government predicting there will be an additional 230,000 assessments when the cap comes into force in Further, every time the person s needs change they will seek a reassessment so as to ensure that their clock is ticking at the appropriate rate. With all the additional assessments, and the incentive for service-users to reach the cap as quickly as possible, there is much room for complaints, ombudsman interventions, statutory appeals (see below), and other challenges to the rate at which the care account increases. The administrative burden of managing the accounts is likely to be very significant, whilst only a small minority of relatively wealthy individuals are ever likely to reach the 72,000 cap. 30. A further potential problem area created by the Dilnot reforms is that self-funders will have the option of asking the local authority to commission their care. The sheer bargaining power of local authorities means that they are generally able to 8

9 pay lower rates for placements in care homes than do privately paying residents; indeed it appears that the business model of many care homes is that privately paying residents cross-subsidise the authority residents. When independent personal budgets are introduced, service-users will immediately see the rates they could obtain if they allowed the local authority to commission their care for them. The result is likely to be either that self-funders are able to obtain the lower local authority rate, or that rates are driven up for everybody. Either outcome is likely to distort an already fragile care homes market. 31. Sections 18 and 19 are the important provisions which create the powers and duties for local authorities to meet eligible, assessed needs, mirroring very closely the position under the current statutory framework. Section 20, for the first time, imposes a duty on (as well as creating a power for) a local authority to meet the eligible, assessed needs of carers. Section 20(7) provides that a local authority may meet some or all of a carer s needs for support in a way which involves the provision of care and support to the adult needing care, even if that adult does not himself meet the eligibility threshold. 32. Section 21 preserves the dividing line between the responsibilities of the local authority and the responsibilities of the Secretary of State for the Home Department by excluding from the Act those who are subject to immigration control, whose needs have arisen solely because they are destitute or because of the effects of destitution. This preserves the position in s.21 of the National Assistance Act Section 22 seeks to preserve the existing dividing line between a local authority s community care responsibilities and the NHS s continuing healthcare responsibilities, as examined in detail by the Court of Appeal in the leading case of R v North and East Devon Health Authority ex parte Coughlan [2000] 2 WLR Section 23 preserves the distinction between a local authority s community care and housing functions by preventing a local authority from meeting community care needs by doing anything which it is required to do under housing legislation. 9

10 35. Sections 24 to 28 contain the provisions relating to support planning, to be set out in documents which will now be called care and support plans. Section 25 describes what such plans should contain, and this includes a personal budget. Section 26 prescribes what such budgets must contain. Under a personal budget, the local authority is required to set out the total sum of money a person is assessed as needing, and the cost of services required to meet those needs (the reference in the existing statutory framework to the relevant cost being the reasonable cost of meetings needs has gone, at least from primary legislation). The local authority can still commission the services, but the rationale is that service-users will demand less if they know how much the services cost. Personal budgets have been in existence for a number of years, but the requirement to produce them in every case is novel. But since most local authorities already do this, however, it is unlikely to make much practical difference. 36. Section 30 requires that where an authority decides to meet needs by arranging for the provision of accommodation, it must comply with an adult s preferences as to where he or she is accommodated, provided conditions set out in Regulations are met. 37. Sections 31 to 33 provide that where a person, or (in the case of a mentally incapacitated adult) their guardian, requests that a personal budget is paid by way of direct payment, the local authority must comply with that request provided certain conditions are met. The new provisions are almost identical to the existing regime, save that direct payments will from April 2016 be available for residential care placements. 38. Sections 34 to 36 allow local authorities to enter into deferred payment agreements pursuant to which, in essence, the local authority pays for an adult s care but is then reimbursed from out of the proceeds of that person s estate upon their death. 39. Sections 37 to 38 make provision intended to smooth out the process of moving from one authority to another for those in receipt of adult social care. For 10

11 example, the receiving authority is required to commence the assessment process before the adult moves and, if it has not completed the process by the time of the move, it must meet the needs set out in the existing assessment until such time as it has completed an assessment of its own. 40. Sections 39 and 40 establish the rules on ordinary residence and for the resolution of disputes about ordinary residence. These essentially remain the same as in the existing legislation: a. The deeming provisions in respect of residential accommodation are replicated. b. The Bill provides that if a service user has needs that can only be met in accommodation of a type specified in regulations, the adult is ordinarily resident in the place he was ordinarily resident in immediately before the placement, or if of no settled residence, the area where he was present. c. If a service user moves from a specified type of placement to another specified type of placement then the question of ordinary residence is not revisited. 41. The Government states that these provisions will close the gap in current law which meant that, in some cases, it was not clear which LA was responsible for some types of accommodation arranged in other areas. 42. Sections 42 to 47 create a range of safeguarding duties which amount to a basic safeguarding code. Local authorities will have duties to make inquiries where there are safeguarding concerns, and to set up safeguarding adult boards for the carrying out of safeguarding adult reviews in defined circumstances. Disappointingly, however, local authorities are given no new powers (for example, a right of entry to investigate a safeguarding concern) with which to carry out their duties. Even the rarely used power under s.47 of the 1948 Act to remove people in need of care has been repealed without being replaced. At least 11

12 one commentator has suggested that the position may not comply with the UK s positive obligations to safeguard individuals under human rights legislation Sections 48 imposes a new duty on local authorities to meet the need of any adult or carer which were being met by a provider whose business has failed, for so long as it considers necessary, whether or not it was previously meeting those needs. 44. Sections 53 to 57 create a new regime under which the Care Quality Commission will oversee the financial health of social care providers. 45. Sections 59 to 66 supplement the leaving care duties currently found in Part III of the Children Act They make provision for the assessment and the meeting of the needs of children and of child carers as they make the difficult transition between children s and adult s services at the age of Sections 67 and 68 require local authorities to arrange for an independent advocate to represent and support an adult in the assessment, care planning, or safeguarding review process, in cases where they would otherwise have substantial difficulty in participating. 47. Section 72 enables a statutory appeals process in respect of decisions made under Part I of the Act. There is currently no detail in the Act as to the nature of or procedure for such appeals, with the whole of the system to be worked out in regulations due later in Section 73, added at a late stage in the passage of the Act, applies the protections in the Human Rights Act 1998 to service users whose care or support is arranged or funded by their local authority either in their own home or in a care home. 49. Section 75 amends section 117 of the MHA 1983, which requires local authorities and CCGs jointly to provide after care services to patients upon their discharge 3 Luke Clements Adult Social care law reform (2013) Elder Law Issue 3, Volume 3 12

13 from hospital, but does not define what after care services are. The Courts, including the House of Lords, have been asked numerous times to provide a definition. Most recently, in the case of R (Afework) v L.B. Camden [2013] EWHC 1637 (Admin), Mostyn J was asked to consider whether a mere roof of the head could, without more, fall within the definition, but decided that it could not. He observed that the linking of the word after with care meant that the services in question must be consequential to the detention in hospital and relate to the reason for the detention in the hospital. S.117 would only require accommodation to be provided where: (i) the need for accommodation is a direct result of the reason that the ex-patient was detained in the first place; (ii) the requirement is for enhanced specialised accommodation to meet needs directly arising from the original condition; and (iii) the ex-patient is being placed in the accommodation on an involuntary (in the sense of being incapacitated) basis arising as a result of the original condition. 50. The Care Act 2014 modifies the first two of Mostyn J s requirements and, notably, does away with the third all together. It now defines after care services as services which (i) meet a need arising from or related to the person s mental disorder; and (ii) reduce the risk of a deterioration of the person s mental condition (and, accordingly, reducing the risk of the person requiring admission to a hospital again for treatment for the disorder). 51. Further, by section 75(6), a new s.117a is introduced under which the Secretary of State is empowered to make regulations requiring a local authority to comply with a preference by P for particular accommodation, with P paying a top-up fee if the preferred accommodation is more than the authority s usual cost. In discharging this duty, the local authority is permitted to provide the person with direct payments. 52. Section 78 requires a local authority to act under the general guidance of the Secretary of the State in the exercise of its functions under the Act. Draft guidance was issued for consultation in the early summer and runs to some 428 pages. The government is currently considering the consultation responses. 13

14 Roundup of possible areas of conflict 53. We have identified above a number of potential areas of conflict arising out of the passage into law of the Care Act. To recap, these are: (1) Disputes over the rate at which service-users accounts accumulate towards the 72,000 cap; (2) Commercial disputes relating to the rates local authorities will pay when they commission placements in residential homes for self-funders; (3) Inter-agency disputes between local authorities and clinical commissioning groups over the dividing line between community care and continuing health care; (4) High-level questions arising out of the compatibility of the safeguarding provisions of the Care Act with human rights legislation; (5) Challenges to any variation (or even non-variation) by authorities of their eligibility thresholds following the adoption of national eligibility criteria. 39, ESSEX STREET LONDON WC2R 3AT SEPTEMBER