Social care assessment, eligibility and care planning

Transcription

1 Factsheet 41 August 2015 Social care assessment, eligibility and care planning About this factsheet This factsheet is just one of many factsheets produced by Age UK to provide information about your rights to advice, help and practical support within the adult social care system run by local authorities (councils). This particular factsheet will explain the process and the legal framework for: getting into the social care system; obtaining an assessment of your care and support needs (whether you are someone who needs care or whether you are a carer); how the local authority decides who is eligible to receive care and support services; and working out a care plan for meeting your care and support needs. It will touch on other areas such as paying for care, but not in any detail. We ll refer you to the other relevant factsheets at these points in the text. This factsheet describes the situation in England. There are significant differences in how social care for adults and carers works in Northern Ireland, Scotland and Wales. If you want information about these nations contact the relevant national office for help see section 16 for details. For details of how to order our other factsheets and information materials mentioned here go to section 16. Factsheet 41 August of 53

2 Inside this factsheet 1 Introduction A single, unifying, Act The structure of the new law under the Care Act What do all these legal terms mean? Definitions and terminology The policy context 7 2 An overview of the process Referral The carer Assessment Eligibility criteria Local authority duty to arrange or provide care and support services The means test Care and support plan NHS care 9 3 Some new general duties introduced by the Care Act Wellbeing Preventing needs for care and support Providing information and advice 12 4 Assessment What initial actions to take Your right to an assessment What is a needs assessment? Useful tips 17 5 Advocacy 18 6 Deciding whether your needs meet the national eligibility threshold Reviews Adults with social care needs Carers Applying the criteria What happens if I don t meet the eligibility criteria? 23 Factsheet 41 August of 53

3 6.6 Useful tips The right to request having your needs met 25 7 Care and support planning Who will decide on the detail of the care or support plan and what will it include How will my eligible needs for care or support be met? The use of funding panels Reviews 30 8 Personal budgets and direct payments Calculating the personal budget Direct payments 33 9 Types of care Care in your own home Accommodation and care Moving from one local authority area to another: continuity of care and support Paying for care at home or in a care home Self-funders Ordinary residence and rights to services What to do if there is a problem If you disagree with the local authority s assessment, personal budget or care plan What if I refuse an assessment or other help from the local authority? Using the complaints procedure Complaining to the local government ombudsman Other action that you might take Care Quality Commission Appendix Useful organisations Further information from Age UK 50 Factsheet 41 August of 53

4 1 Introduction 1.1 A single, unifying, Act We are in the midst of a major change in adult social care law. Up until this year, the law has been set out in a number of different Acts of Parliament starting with the post-war National Assistance Act This mass of legislation from different periods in our history meant that it was often very difficult to work out what rights individuals had and what obligations were owed to people by local authorities. This has now changed. The Care Act 2014 has been passed by Parliament and most of it is in force from April Some aspects, mainly to do with charging and the introduction of a cap on the care costs are not finalised at the time of writing (March 2015). In July 2015, their introduction was delayed from 2016 to The purpose of the Act is to consolidate the law, to make it simpler and more accessible, and to bring it up to date, so that recent policy initiatives are now embedded in the legal system (see below). The Care Act 2014 is all about adults with care and support needs and those who care for them. It does not cover some specialist areas. Mental health law is separately set out in the Mental Health Act The law governing decision-making and other issues for those people who do not have the mental capacity to do those things themselves, for instance as a result of advanced dementia, is in the Mental Capacity Act These specialist laws will not be covered in any detail in this factsheet, but people with impaired cognitive powers and who suffer mental illness do have the same rights as anyone else under the Care Act The structure of the new law under the Care Act 2014 The Care Act 2014 itself sets out the legal powers and duties of local authority adult social services. Some of the more detailed law is in regulations made under the Act. There are 21 sets of these regulations and they are also legally binding. We ll refer to some of them later on. Then, to help professionals understand how to put all this law into practice, the Department of Health has also issued the Care and Support Statutory Guidance 2014, which provides very detailed advice as to how the law should work. Factsheet 41 August of 53

5 1.3 What do all these legal terms mean? Acts of Parliament, like the Care Act 2014, place duties on public bodies such as local authorities. These duties have to be carried out. If they are not then the local authority could be legally challenged in court proceedings (see 13.5 for more information about this). Acts also give pubic bodies powers to do things. This gives them a choice as to whether they do it or not. So, where the Care Act 2014 gives the local authority discretion, for instance to support someone even if they do not meet the national eligibility criteria, they do not necessarily have to provide that support, they have a choice. But they do have to exercise the choice that the law has given them. They cannot just close their minds. If they do not consider using their powers, they could be challenged for what is known in the court cases as fettering their discretion or applying a blanket policy. The Care and Support Statutory Guidance 2014 (referred to in the rest of this factsheet simply as the statutory guidance ) is not legally binding on local authorities in quite the same way, but they generally do have to apply it. Section 78 of the Care Act 2014 requires local authorities to act under the general guidance of the Secretary of State for Health. This means that local authorities must do what the guidance says unless they have a good, justifiable reason not to in a particular case. The courts have confirmed this in a case under the old law, which used the same words (R v Islington ex parte Rixon ( CCLR 199)). 1.4 Definitions and terminology When we use the words local authority or council in this factsheet we mean: a county council (such as Shropshire or Devon); a Metropolitan Borough or district council (such as Sandwell or Tameside) where there is no county council; a London borough council (such as Haringey or Sutton); the Common Council of the City of London; or Factsheet 41 August of 53

6 a unitary authority (these have taken the place of some counties such as North West Somerset formerly part of Avon County Council; or Hartlepool formerly part of Cleveland County Council). In areas with two-tier local government the county council is responsible for social services. The adult social care department is within the social services part of your local authority, and is responsible, among other duties, for assessing people s need for care and support or social care services, deciding whether those needs meet the eligibility criteria and (depending on the means test) sometimes providing financial support to meet assessed needs. Contact details should be in your local telephone directory. Your town hall, council offices, Citizens Advice Bureau and local Age UK will also be able to tell you how to contact the social services. We will use local authority or adult social care to cover the above terms in this factsheet. Here are some terms used in the Care Act 2014 and in this factsheet: Adult (with care and support needs) means a person with an illness or disability which gives rise to long term care needs. We ll use the term older person, but of course the Act covers all adults who have needs. Carer means a person who provides informal care for an adult with care needs. It is usually a partner, spouse, civil partner or family member, but may also be a friend or a neighbour. It does not include a care worker providing paid care, or a volunteer through, say, a befriending scheme. Under the old law a carer had to provide substantial care on a regular basis, but this does not apply anymore. Please note that this definition is for local authority support, the criteria for carers to receive Carers Allowance are different. Individual is used in the Care Act 2014 to mean both carers and adults with needs. We ll use it in the same way. Your assessment will not necessarily be carried out by a qualified social worker (see section 4.3 below). We will use the term social worker in this factsheet as short hand to refer to a social care professional. Factsheet 41 August of 53

7 1.5 The policy context New law does not come out of thin air, it comes about partly to ensure that national policy developments get embedded in law. The key development in adult social care law is personalisation. This concept has been developed in government circles for several years now and is aimed at increasing choice and control for individuals. The White Paper, Caring for our Future, which was published alongside the first draft of the Care Bill in July 2012, set out some underlying principles: The health, wellbeing, independence and rights of individuals are at the heart of care and support; timely and effective interventions help to ensure a good quality of life for longer. People are treated with dignity and respect, and are safe from abuse and neglect; everybody must work to make this happen. Personalisation is achieved when a person has real choice and control over the care and support they need to achieve their goals, to live a fulfilling life, and to be connected with society. The skills, resources and networks in every community are harnessed and strengthened to support people to live well, and to contribute to their communities where they can and wish to. Carers are recognised for their contribution to society as vital partners in care, and are supported to reach their full potential and lead the lives they want. A caring, skilled and valued workforce delivers quality care and support in partnership with individuals, families and communities. Factsheet 41 August of 53

8 2 An overview of the process 2.1 Referral There are a number of ways in which your situation can be brought to the attention of the local authority including: a self-referral; a referral from a carer, friend or family member, or from a professional such as your GP, with your permission. It may also be by a doctor or nurse in a hospital setting if you need help at home following your discharge from hospital. Once the local authority is aware that you may have needs, it has a duty to carry out an assessment. 2.2 The carer If you get help from a friend or family member (a carer), your carer s own needs and opinions should be considered and taken into account as part of your own assessment. Carers also have a right to their own assessment in parallel or sometimes jointly with yours. Carers now have an absolute right to have their eligible needs met for the first time under the Care Act Assessment Before the local authority can assist you, it must first carry out an assessment of your care and support needs a needs assessment. This is a legal duty and the assessment must take into account all aspects of your needs. An older person would nearly always be entitled to a needs assessment. It can happen in a number of different ways (see 4.3). This right is not affected by your financial or other circumstances. You will be given a copy of your assessment. 2.4 Eligibility criteria After a needs assessment, the local authority must decide whether or not it should provide or arrange care services for you. It must use national eligibility criteria to make the decision. These are a way of rationing limited resources to try and make sure that scarce resources go to those who need them most (see section 6). The carers eligibility criterion is slightly different to that of the adult. Factsheet 41 August of 53

9 2.5 Local authority duty to arrange or provide care and support services Having established that your identified needs meet the eligibility criteria (you have eligible needs ), the local authority then has a legal duty to arrange or provide support for you to meet those needs that cannot be met by other support in the community, including carers (see section 7). 2.6 The means test Care support is means tested. The local authority will carry out a financial assessment (means test) to establish how much you should contribute towards the cost of providing services to meet your assessed needs. Some people will be assessed as able to meet the full costs of care. It must publish information about general fee levels and follow national guidelines when processing the means test (see section 11). 2.7 Care and support plan Following an assessment by a local authority a care and support plan must always be discussed, agreed as much as possible, and written down. You will be provided with a copy of it. This sets out the level of help you have been assessed as needing, how it will be arranged and what it will cost (the personal budget) (see section 6). 2.8 NHS care If you only need health care, you should approach your family doctor or other health worker. Age UK s Factsheet 44, NHS services, describes the type of health services that may be available. These will generally be free at the point of delivery. If you need both health and social care support, both authorities should work together in an integrated manner. Factsheet 41 August of 53

10 3 Some new general duties introduced by the Care Act 2014 The Care Act 2014 has put in place some new general duties that should have a significant effect on the process of assessing and meeting your care and support needs. Those that impact particularly on the process outlined above are summarised here. 3.1 Wellbeing Section 1 of the Care Act 2014 requires local authorities to carry out their work in a way that will promote your wellbeing. This applies equally whether you are an older person who may need care or whether you are a carer looking after another adult. It is a fundamental principle in the Act, which should inform everything the adult social care department does. Wellbeing is a very broad term. The Care Act 2014 says that it means the individual s well-being in relation to this list of factors: a) personal dignity (including treating you with respect); b) physical and mental health and emotional well-being; c) protection from abuse and neglect; d) control by you over your day-to-day life (including your care & support arrangements; e) participation in work, education, training or recreation; f) social and economic well-being; g) domestic, family and personal relationships; h) suitability of your living accommodation; i) your contribution to society. In meeting this general wellbeing duty, section 1(3) sets out a number of factors that the local authority must have regard to: the assumption that the individual is best placed to judge their own wellbeing; the individual s views, wishes, feelings and beliefs; preventing, delaying or reducing the need for care support; ensuring all relevant circumstances are taken into account and avoiding unjustified assumptions based on age, appearance or condition; Factsheet 41 August of 53

11 maximising participation; achieving a balance between the well-being of the adult and any carers; protection from abuse and neglect; and minimum restriction of rights and freedoms. The statutory guidance makes some important and helpful points about the well-being principle: there is no hierarchy and all aspects should be considered of equal importance; promoting well-being means actively seeking improvements; applies equally to those who do and do not have eligible needs; it is a duty that applies to strategic planning as well as to individuals As such, wellbeing should be seen as the common theme around which care and support is built at local and national level. 3.2 Preventing needs for care and support There is considerable emphasis on prevention in the new legal framework. This is designed to try and keep people healthy and able to look after themselves for as long as possible. To do this local authorities must provide or arrange for the provision of services, facilities or resources to prevent, delay or reduce the need for care and support, both for adults and carers (Care Act 2014, section 2). This is a proactive function and section 2 goes on to say that local authorities, in their preventative work, must have regard to the importance of: identifying existing services, facilities and resources; identifying adults with care and support needs which are not being met; and carers with support needs which are not being met. Factsheet 41 August of 53

12 There is a power to charge for preventative services, but the Care and Support (Preventing Needs for care and Support) Regulations 2014 prohibit charging carers for provisions intended to prevent or delay the development by the carer of needs for support or to reduce the carer s needs for support which consists of provision made directly to the adult needing care. The statutory guidance says that there is no need to apply the charging regulations to preventative services, simply that any charge should be affordable to the person concerned. The statutory guidance also says that local authorities should provide written information to anyone receiving preventative support. The information must specify your needs, why the action is proposed, expected outcomes, timescale and what happens next. In summary, whether you are someone who needs care or a carer, and regardless of whether or not you meet the eligibility criteria (see section 6) you should at least be offered written advice and information about what you can do to prevent, delay or reduce the need for care and support. You may also be offered one or more preventative services, and there could be a charge for the service, each local authority will have its own policy about whether or not to charge. 3.3 Providing information and advice Local authorities must establish and maintain an information and advice service about care and support in their area. Section 4 of the Care Act 2014 says that the service must provide information and advice, particularly, on: the care system and how it works locally; the choice of types of care and support, and the choice of providers, available in the area; how to access the care and support that is available; how to access independent financial advice on matters relevant to meeting care and support needs, (this advice must be completely independent of the local authority); and how to raise concerns about the safety or well-being of an adult who has needs for care and support (adult safeguarding concerns). Factsheet 41 August of 53

13 The information must be accessible and proportionate. In other words it must be designed so that you can understand it and have the right amount of relevant information for your particular circumstances. 4 Assessment 4.1 What initial actions to take The first step in obtaining help from the local authority adult social care department is to ask for an assessment of your needs. Look in the local telephone book for contact details or if you cannot find them ask at the local authority s main office, or look on their website. There should be a contact number to start the process. Each local authority has its own assessment procedure. Find out how assessment works in your local authority. This information (see 3.3 above) should be available in written form and on their website. You should find this information at the social care department, a hospital social care department, or perhaps in the library or the GP s surgery. If you cannot obtain this information, you should complain to the adult social care department, or contact your local councillor. Your local Age UK or Citizens Advice may be able to help you find out more about assessment. 4.2 Your right to an assessment There is a duty on the local authority to assess (a) whether you have needs and, (b) if so, what those needs are. The duty is triggered, under section 9 of the Care Act 2014, where it appears to the local authority that any adult may have needs for care and support or, under section 10, a carer may have needs for support (whether currently or in the future). Factsheet 41 August of 53

14 This uses very similar language to the earlier law where the courts have stressed that there is a very low threshold for an assessment. The local authority must assess anyone who may have care or support needs. In the case of R v Bristol City Council ex parte Penfold ( ) 1 CCLR 315 the court decided not only that this was a very low threshold, but also that the duty applied regardless of whether or not the local authority thought that Mrs Penfold would meet the eligibility criteria for care services. This is now set out in the Care Act 2014 too, which explains that the right to an assessment applies regardless of both your level of needs and your finances. Your financial circumstances are not relevant until the care planning stage. The law does not say how quickly an assessment should take place, but it should be carried out in an appropriate timeframe in each circumstance. Your local authority should be able to give you an idea of the timescales operating locally. If you are in urgent need of care, for instance because you rely on a carer who has been taken ill, the local authority has a power to put in care services without waiting for an assessment, which should still happen at a later date. Note: If you are a carer you are entitled to an assessment of your needs in the future as well as currently. This is useful if you are about to take on a caring role for someone and you want to get help and information from the local authority about what support services you are going to be entitled to and advice about, for instance, managing work and caring or caring and other family responsibilities. 4.3 What is a needs assessment? Each local authority has quite a lot of discretion about how it carries out assessments, but there are also some important legal principles that must be followed. For instance (from the Care Act 2014 section 9 (adults) and section 10 (carers)): the assessment must include the impact on the well-being factors and the outcomes the person wants to achieve; Factsheet 41 August of 53

15 the adult, carer and anyone else the adult wishes must be involved; in the case of a carer s assessment, it is the carer and anyone else they wish to involve; the assessment must consider ways of achieving the individual s desired outcomes other than by providing care and support, including preventative services and/or advice and information; In the case of carers, section 10 also requires carer s assessments to consider: whether the carer is, and is likely to continue to be, able and willing to provide care; whether the carer works or wishes to; and whether the carer is participating in or wishes to participate in education, training or recreation. The Care and Support (Assessment) Regulations 2014 say a bit more about how an assessment should be done. It must be carried out in a way that is appropriate and proportionate to your individual needs and circumstances, and enables you to participate in the process as effectively as possible. These Regulations go on to say that, in seeking to ensure that the assessment is appropriate and proportionate, the local authority has to take into account your wishes and preferences, the outcome you want from the assessment and the severity and extent of your needs. If you have a fluctuating condition, such as multiple sclerosis, then the assessment should span a long enough period to get an accurate indication of your levels of need. According to the same Regulations, the local authority must also give you information about the process prior to the assessment whenever it is practicable to do that, and in a format that is accessible to you. So this would include, for instance, large print or translated material. Factsheet 41 August of 53

16 The assessment must, say the Regulations, be carried out by someone with the relevant skills, knowledge and competence, who must be appropriately trained. This does not mean that you will necessarily be assessed by a qualified social worker, but it should be someone who is competent and trained to do the job. If you have complex needs then you are more likely to be assessed by a qualified social worker or an occupational therapist, or both together. If you have a specialist condition, such as dementia, and especially if you are both deaf and blind, then you must have a suitably trained specialist involved in your assessment. The statutory guidance explains that the assessment process is: not just a gateway to care and support, but should be seen as a critical intervention in its own right, which can help people to understand their situation and the needs they have, to reduce or delay the onset of greater needs, and to access support when they require it. It adds some more important points about the assessment process, pointing out that it must consider all your care and support needs, regardless of any support you receive from a carer. The statutory guidance says that to be proportionate and appropriate, assessments do not need to be face-to-face in each case. According to the guidance, assessments may be: face-to-face; supported self-assessment; on-line or phone assessment; or combined or joint assessments (if you consent or, in the case of someone unable to consent, it is in their best interests). In any complex case assessment should be face to face and the statutory guidance is clear that, Where there is concern about a person s capacity to make a decision, for example as a result of a mental impairment such as those with dementia, acquired brain injury, learning disabilities or mental health needs, a face-to-face assessment should be arranged. Factsheet 41 August of 53

17 The Regulations require a supported self-assessment to be offered, but of course you can refuse if you do not want one. This is an assessment carried out jointly by the local authority and you. In practice a self-assessment form would probably be sent out in advance for you to think about and to fill in, and would then be checked by your social worker or care manager. The local authority has to assure itself that it really does reflect all your care needs and how those needs impact on your well-being. Combined assessments are most likely to be a combination of mental health and social care or health and social care. You do not have to agree to a combined assessment, but it may be a good way of encouraging health and social care to work together. Joint assessments usually assess the needs of both the carer and the cared for person together. This can work well, but sometimes one or both of you may feel that you would benefit from the chance to talk to your social worker or care manager in private. If you find that the local authority wants to carry out a phone assessment and you think that this will not be able to reflect your needs properly, then you should explain why and ask for a face-to-face assessment. If you are still refused one, you could challenge that refusal (see section 13) 4.4 Useful tips When you are going through the assessment process, whether you are an older person with care needs or a carer, it is important to make sure that you give your social worker the full picture. Resist the temptation to say that things are better than they are, or that you are managing when in reality you are struggling. You will only get help when you convince the local authority that you need it. In recent years local authorities have responded to financial cuts by concentrating mostly on care services to make sure that people can function get up, get dressed, keep clean etc and they have ignored wider social needs, for instance support to enable you to still get out and about and be involved in your local community to stop you getting isolated at home. Factsheet 41 August of 53

18 The emphasis in the Care Act 2014 on prevention and on all the well-being factors means that it will be harder for local authorities to ignore these wider quality of life social care issues. The guidance says that all the well-being factors are equally important. Again, these social needs may not be considered unless you point them out and be clear about how important they are to you. If you feel that your assessment does not fully reflect all the personal and social care issues that you have, then you can ask for them to be included. If that is refused then you are entitled to lodge a formal complaint (see section 13). 5 Advocacy An advocate is a professional whose job is to help people to understand the system and to put their views across. The Care Act 2014 sets up a new independent advocacy scheme to help people who experience substantial difficulties in understanding or making decisions about their care and have no appropriate person, such as a carer, friend or family member to help them engage in the process. This builds on the scheme that already exists (under the Mental Capacity Act 2005) for people who have a significant mental impairment. Under the Care Act 2014 some older people are entitled to the support of an independent advocate at key stages in the process. This right applies to people who have substantial difficulty in doing any of these: understanding relevant information (about social care and health issues); retaining that information; using or weighing up the information; communicating their views, wishes or feelings. Factsheet 41 August of 53

19 If you care for an older person in this category, then she or he will probably not generally be entitled to an advocate, because you will be seen as an appropriate person, so an advocate won t be necessary. Sometimes this changes if there is a dispute between you and the local authority over what s best for the person you care for. If the local authority thinks that what you want for that person isn t in their best interests or isn t the same as they want, then they can and should appoint an independent advocate. They must also appoint an advocate when the assessment and care planning process is likely to lead to the adult going into hospital for 28 days or more, or care home accommodation for longer than 8 weeks, and the local authority thinks it is in the adult s best interests. The advocate s job is to try to find out what the person you care for wants and feels, and help identify what is in his or her best interests. The advocate is required by the Care and Support (Independent Advocacy Support) (no 2) Regulations 2014 to be properly trained, be of good character and be completely independent of the local authority. They must also challenge any decision made in the assessment and care-planning process that they think is inconsistent with the well-being principle (set out in 3.1). 6 Deciding whether your needs meet the national eligibility threshold This is very important because if your needs as an older person or as a carer meet the eligibility criteria then the local authority has a clear legal duty to ensure that those eligible needs are met. The eligibility threshold is different for adults with care needs and for carers. Both sets of criteria are set out in the Care and Support (Eligibility Criteria) Regulations Factsheet 41 August of 53

20 6.1 Reviews Once support is provided, it must be checked or reviewed regularly to confirm that it is appropriate and safe, that there haven t been any changes in your needs and that the funding is adequate. This process is an ongoing one. Being asked to pay the full amount to meet your assessed needs should not result in the local authority relinquishing its duty of care with regard to your case. If you have any concerns or your circumstances change you can ask for a review (see section 7.4). 6.2 Adults with social care needs You will meet the eligibility threshold if: you have needs connected with any kind of disability or illness; and those needs prevent you achieving 2 or more outcomes in the list below; and that results in a significant impact on your wellbeing (see section 3.1). Here is the list of outcomes in the Regulations: (a) managing and maintaining nutrition; (b) maintaining personal hygiene; (c) managing toilet needs; (d) being appropriately clothed (this includes being able to get dressed); (e) being able to make use of the adult s home safely; (f) maintaining a habitable home environment; (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; and (j) carrying out any caring responsibilities the adult has for a child. The regulations go on to say that you will be treated as unable to achieve an outcome if you are: (a) unable to achieve it without assistance; (b) able to achieve it without assistance but doing so causes you significant pain, distress or anxiety; Factsheet 41 August of 53

21 (c) able to achieve it without assistance but doing so endangers or is likely to endanger the health or safety of you, or of others; or (d) able to achieve it without assistance but take significantly longer than would normally be expected. 6.3 Carers You will meet the eligibility threshold if: you have needs connected with providing necessary care; and those needs mean that your physical or mental health is deteriorating or is at risk of deteriorating or you are unable to achieve any of the outcomes set out in the list below; and that results in a significant impact on your wellbeing (see section 3.1). Here is the list of outcomes in the Regulations: (i) carrying out any caring responsibilities the carer has for a child; (ii) providing care to other persons for whom the carer provides care; (iii) maintaining a habitable home environment in the carer s home (whether or not this is also the home of the adult needing care); (iv) managing and maintaining nutrition; (v) developing and maintaining family or other personal relationships; (vi) engaging in work, training, education or volunteering; (vii) making use of necessary facilities or services in the local community, including recreational facilities or services; and (viii) engaging in recreational activities. As a carer you will be treated as unable to achieve an outcome if you are: (a) unable to achieve it without assistance; (b) able to achieve it without assistance but doing so causes you significant pain, distress or anxiety; or (c) able to achieve it without assistance but doing so endangers or is likely to endanger the health or safety of you, or of others. Factsheet 41 August of 53

22 Note: When adult social care is deciding whether the person you care for meets the eligibility criteria they cannot, at this stage, take into account the care that you provide. In other words they have to make a decision about the needs of the person you care for as though you were not there to help. The Care Act 2014 guidance makes this clear. 6.4 Applying the criteria There are some potential problems in interpreting exactly what some of the terms mean. In particular to meet the criteria, you must not only be unable to meet specified outcomes, but as a consequence, there must be (or be likely to be) a significant impact on your well-being. The statutory guidance has a section entitled Interpreting the eligibility criteria, which doesn t really help. Two points that it makes may be of assistance. First the local authority does not need to consider the impact of the inability to achieve each individual outcome but should consider the cumulative effect overall. Secondly, significant must be taken to have its everyday meaning and may have both an objective and subjective element. According to the statutory guidance local authorities should determine whether: the adult s needs impact 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. In making this judgement, the local authority should look to understand the adult s needs in the context of what is important to him or her. Needs may affect different people differently, because what is important to the individual s wellbeing may not be the same in all cases. Circumstances which create a significant impact on the wellbeing of one individual may not have the same effect on another. It is likely that, as the new law beds in, there will be legal challenges and the courts may help to clarify what terms mean, when there is uncertainty. Factsheet 41 August of 53

23 If you are a carer there is a pre-condition to meeting the eligibility criteria that you must be providing necessary care. Again, there could well be disagreements about what amounts to necessary care and who decides. The statutory guidance says:..if the carer is providing care and support for needs that the adult is capable of meeting themselves, the carer may not be providing necessary support. However, the statutory guidance also makes it absolutely clear that it does not mean that the person you care for must have eligible needs in order for you to be supported as a carer. It states that Carers can be eligible for support whether or not the adult for whom they care has eligible needs. The eligibility determination must be made without consideration of whether you have a carer, or what needs may be met by your carer. The statutory guidance confirms that [Local] Authorities must only take consideration of whether the adult has a carer, or what needs may be met by a carer after the eligibility determination when a care and support plan is prepared. Even where needs are to be met by a willing and able carer, they must be recorded as eligible needs. The statutory guidance goes on to explain: This is to ensure that should there be a breakdown in the caring relationship, the needs are already identified as eligible, and therefore the local authority must take steps to meet them without a further reassessment. 6.5 What happens if I don t meet the eligibility criteria? As we have said already, there is a lot of emphasis in the Care Act 2014 on prevention to prevent, delay or reduce care needs from worsening and on advice and information (see section 3 above). Factsheet 41 August of 53

24 The Care Act 2014, at section 13, requires local authorities to give you written reasons explaining why you do not meet the eligibility criteria. If you think they ve got this wrong, then you could ask for a reconsideration or challenge the decision (see section 13 below). Local authorities also have to provide you with written advice on prevention. This means that you should not just be left alone to cope without any advice or information to help you manage your care needs better or help you identify and contact other suitable organisations (including Age UK) that can be a support to you. Even if you do not have eligible needs right now, the local authority has a legal power (section 18 for adults, section 20 for carers) to provide you with care support. In the current financial climate, local authorities will only be able to do this in very exceptional circumstances. The most likely example is to give the carer a break to recharge batteries by providing some care support to the cared for person. Both would have to agree to the help for this to be done. 6.6 Useful tips Because the eligibility criteria talk about the need for there being a significant impact on your well-being, it may help your case if you explain to the social worker what the detrimental effect your situation is having on you. Here are some possible examples. Example 1 If you are a carer in your early 60s and you are fearful that you are going to have to give up work early because of your caring responsibilities unless you get help, it is really important that you make it clear how distressing it would be for you to have to do that, the effect on your self-esteem, the financial impact, the impact on your relationships with work colleagues etc. Otherwise the local authority could well decide that they don t need to put in more help, because the impact on you of giving up work at your age would not be significant. Factsheet 41 August of 53

25 Example 2 If you live alone and find it difficult to get out and about because of mobility problems or because you have become reluctant or scared to go out alone, again you must explain what it feels like to you to be stuck indoors and unable to get out and about in your neighbourhood, go to the shops, visit your friends, follow leisure activities you like etc. It is easy for adult social care to think that you are content to stay indoors, so it does not have a significant impact on your well-being. That would mean that you would not be considered eligible for any help to get out and about. 6.7 The right to request having your needs met Chapter 8 of the statutory guidance provides a right to request having your eligible care needs met where you are found to have assets over the capital limit following your related means test. This means that you will have to fund your care in full (a self-funder). In fact, it appears that your right to actually have your eligible needs met in this context only crystallise (materialise) following the making of this request. The local authority must agree to your request in a non-care home related context. The statutory guidance advises that the request could be for a variety of reasons such as a person finding the system difficult to navigate, or wishing to take advantage of the local authority s expert knowledge of local care and support services in terms of what s available and the cost. If a person doesn t have support and lacks the mental capacity to arrange their own eligible care needs, then the local authority has a duty to assist in all types of situation under the section 18(4)(a) of the Care Act Section 80(2) of the Act requires the term capacity (used in section 18) to be interpreted in accordance with the Mental Capacity Act 2005, where (at section 2) an inability to make a decision must be as a result of an impairment of, or a disturbance in the functioning of, the mind or brain. Factsheet 41 August of 53

26 Note: That there is no right to request procedure for care home provision. However, a self-funder with mental capacity could ask for assistance if the reality is that they couldn't arrange their own care home placement without local authority help and there is no one to assist them. As this would require a discretionary response from the local authority, it would not be able to make an arrangement charge if it agrees. A discretionary decision must take all the case facts into account and reasons must be given for the response. It is very hard to see how a local authority could not comply with this request give their general duties, statutory responsibilities. A person may also have a right independent advocacy in this kind of situation (see section 5). In the right to request context, discussed above, the local authority has a power to charge if it chooses. It can charge the full cost for the care and support that it provides plus an arrangement fee. Paragraph 8.58 of the statutory guidance states that: arrangement fees charged by local authorities must cover only the costs that the local authorities actually incur in arranging care. Arrangement fees should take account of the cost of negotiating and/or managing the contract with a provider and cover any administration costs incurred. The statutory guidance advises creating written agreements to avoid disputes about future funding liabilities. 7 Care and support planning The Care Act 2014 spells out the duty to meet eligible needs of adults (section18) and carers (section 20). So, if you do meet the eligibility criteria, the next stage is to work out which of your care or support needs must be met and how that will happen and to decide how much it will cost. It is at this stage of the process that a local authority can look at alternative ways to meet your eligible needs. To be precise, the legal duty is for the local authority to ensure that eligible needs are met, this does not mean that the whole package of care you need will be arranged or funded by the local authority itself. Factsheet 41 August of 53

27 Having identified your eligible needs, without reference to your carer, if you have one, the social worker will now investigate with you (and your carer) the ways in which those needs could be met. If your carer is able and willing to go on providing care for you, then he or she will meet some of your needs. Other needs might be met by what are known as universal services. These are services equally available to people regardless of whether they meet eligibility criteria. They could include joining a walking group, a club, help from a local clinic, voluntary organisation, community centre or faith group. Those eligible needs that cannot be satisfied through the routes we have outlined above must be met by the local authority, although that does not mean that they will provide the care themselves, or even that they will arrange it, or pay for it. We ll explore below what it does mean. 7.1 Who will decide on the detail of the care or support plan and what will it include The policy principle which underlies the approach that should be taken to care planning is explained in this quote from the statutory guidance: The plan should be person-centred, with an emphasis on the individual having every opportunity to be involved in the planning to the extent that they choose and are able. This requires the local authority to ensure that information is available in a way that is meaningful to the person, and that they have support and time to consider their options. The emphasis throughout this chapter of the statutory guidance is on empowerment through involvement and the exercise of choice. Therefore, you should expect to be working very closely with adult social care in developing your own care plan (if you are an older person with care needs) or support plan (if you are a carer). As far as possible, the plan should address how to meet the outcomes that you want to achieve from this process. Section 25(1) of the Care Act 2014 sets out the elements that must always be included in the plan. These are: the needs identified by the assessment; whether, and to what extent, the needs meet the eligibility criteria; Factsheet 41 August of 53

28 the needs that the authority is going to meet, and how it intends to do so; for a person needing care, for which of the desired outcomes care and support could be relevant; for a carer, the outcomes the carer wishes to achieve, and their wishes around providing care, work, education and recreation where support could be relevant; the personal budget; information and advice on what can be done to reduce the needs in question, and to prevent or delay the development of needs in the future; where needs are being met via a direct payment, the needs to be met via the direct payment and the amount and frequency of the payments. 7.2 How will my eligible needs for care or support be met? How the local authority meets your needs can encompass a wide range of options. Under the old law there were various lists, in different Acts of Parliament, of what constituted a community care service, so there was a lot of detail. This was criticised by some people as being too mechanistic and inflexible, and as leading to a situation in which you would only be offered a limited set of options for your care support which might not suit you very well. This has changed now. There is no list of services; in fact the word services barely gets a mention. Instead, section 8 of the Care Act 2014, which is simply called, How to meet needs, is one of the shortest in the Act. It says: (1) The following are examples of what may be provided to meet needs under sections 18 to 20 a) accommodation in a care home or in premises of some other type; 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. Factsheet 41 August of 53

29 As these are only broad examples and not a list, the idea is that care and support planning can be a very flexible process. If you have suggestions about a particular service that you think would meet your needs you should suggest it to adult social care for inclusion in your care plan. However, you may well not know all the options in your area for meeting your care and support needs. It is still the role of the local authority to provide you with professional advice and support. Once the range and amount of care and support that you need has been agreed there are different ways in which it can be put in place. The cost of the agreed services will be set out in a personal budget (this is described in the next section). The care plan can be put in place by: the local authority providing or (more likely) arranging to commission the services for you, for instance from a local care agency; the local authority delegating this job to another organisation, sometimes called a broker who will work with you and make the arrangements to put your care in place, this scheme is often called an individual service fund ; or giving you direct payments to purchase the care you want yourself (see below). Note: Paragraph of the Statutory Guidance states that : Local authorities should ensure that where they arrange services, the assessed needs of a person with eligible care and support needs is translated into effective, appropriate commissioned services that are adequately resourced and meet the wellbeing principle of the Act. For example, short home-care visits of 15 minutes or less are not appropriate for people who need support with intimate care needs, though such visits may be appropriate for checking someone has returned home safely from visiting a day centre, or whether medication has been taken (but not the administration of medicine) or where they are requested as a matter of personal choice. Factsheet 41 August of 53