2 - Doughty Street Chambers€¦ · Web view · 2015-04-01T +44(0)20 7 404 1313 F +44(0)20 7 404 2289/84. W. www ... The entirety of Part 1 is caught by Schedule 3 Nationality

THE CARE ACT 2014

ELIGIBILITY CRITERIA, DUTIES AND POWERS IN RESPECT OF ADULTS IN NEED OF

CARE AND SUPPORT

INTRODUCTION

1. This section deals with the eligibility criteria and the powers and duties in respect of

adults in need of ‘care and support’. The new powers and duties in relation to those

who provide adults with care are dealt with separately.

HEADLINE POINTS:

Sections 21 & 29 National Assistance Act 1948 and s.2 Chronically Sick and

Disabled Persons Act 1970 (so far as it relates to adults) are to be repealed and

replaced by Part 1 of the Care Act 2014.

New statutory “national eligibility threshold” replace the local eligibility criteria

The eligibility criteria involve a more structured approach

There is a duty to provide written notification of decisions, with reasons

The extent of the local authority’s resources are relevant to decisions about how

eligible needs are to be met but not to whether they must be met

By April 2016 local authorities will have duties to ‘self-funders’, including those

who have exceeded their ‘care cost cap’

The health/social care divide is retained

The ‘Destitute Plus’ test is extended to all care and support

The entirety of Part 1 is caught by Schedule 3 Nationality Immigration and

Asylum Act 2002

THE NEW STATUTORY ELIGIBILITY CRITERIA1

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The old law

2. The old legislation itself made no reference to eligibility criteria.

3. Save for the provision of residential accommodation pursuant to s.21 NAA 1948 local

authorities were free to set their own eligibility criteria based on the 2002 Fair

Access to Care Services (“FACS”) and latterly the 2010 Prioritising Need Guidance.

The eligibility framework was graded into four bands.

“Critical - when

life is, or will be, threatened; and/or significant health problems have developed or

will develop; and/or there is, or will be, little or no choice and control over vital

aspects of the immediate environment; and/or

•serious abuse or neglect has occurred or will occur; and/or

•there is, or will be, an inability to carry out vital personal care or domestic routines;

and/or

•vital involvement in work, education or learning cannot or will not be sustained;

and/or

•vital social support systems and relationships cannot or will not be sustained;

and/or

•vital family and other social roles and responsibilities cannot or will not be

undertaken.

Substantial – when

•there is, or will be, only partial choice and control over the immediate environment;

and/or

•abuse or neglect has occurred or will occur; and/or

•there is, or will be, an inability to carry out the majority of personal care or

domestic routines; and/or

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•involvement in many aspects of work, education or learning cannot or will not be

sustained;

and/or

•the majority of social support systems and relationships cannot or will not be

sustained;

and/or

•the majority of family and other social roles and responsibilities cannot or will not

be undertaken.

Moderate – when

•there is, or will be, an inability to carry out several personal care or domestic

routines;

and/or

•involvement in several aspects of work, education or learning cannot or will not be

sustained; and/or

•several social support systems and relationships cannot

or will not be sustained; and/or

•several family and other social roles and responsibilities cannot or will not be

undertaken.

Low - when

• there is, or will be, an inability to carry out one or two personal care or domestic

routines;

and/or

•involvement in one or two aspects of work, education or learning cannot or will not

be sustained; and/or

• one or two social support systems and relationships cannot or will not sustained;

and/or




• one or two family and other social roles and responsibilities cannot or will not be

undertaken.”

4. Particularly in recent times the vast majority of local authorities elected to meet

Substantial and Critical needs only. It was the Department of Health’s intention to

replicate the Substantial Band in the new law. However some commentators and

local authorities have suggested that the new criteria may in fact be closer to the

Moderate Band.

The new law

5. The eligibility criteria are contained in s.13 of the Act and the Care and Support

(Eligibility Criteria) Regulations 2015/313.

“Section 13(1)

(1) Where a local authority is satisfied on the basis of a needs or carer's

assessment that an adult has needs for care and support or that a carer has

needs for support, it must determine whether any of the needs meet the

eligibility criteria (see subsection (7)).

(2) Having made a determination under subsection (1), the local authority must

give the adult concerned a written record of the determination and the

reasons for it.

(3) Where at least some of an adult’s needs for care and support meet the

eligibility criteria, the local authority must—

(a) consider what could be done to meet those needs that do,

(b) ascertain whether the adult wants to have those needs met by the local

authority in accordance with this Part, and




http://www.legislation.gov.uk/ukpga/2014/23/section/13/enacted#section-13-1

(c)establish whether the adult is ordinarily resident in the local authority’s

area.

(4) Where at least some of a carer’s needs for support meet the eligibility criteria,

the local authority must—

(a) consider what could be done to meet those needs that do, and

(b) establish whether the adult needing care is ordinarily resident in the local

authority’s area.

(5) Where none of the needs of the adult concerned meet the eligibility criteria,

the local authority must give him or her written advice and information about

—

(a) what can be done to meet or reduce the needs;

(b) what can be done to prevent or delay the development of needs for care

and support, or the development of needs for support, in the future.

(6) Regulations may make provision about the making of the determination

under subsection (1).

(7) Needs meet the eligibility criteria if—

(a) they are of a description specified in regulations, or

(b) they form part of a combination of needs of a description so specified.

(8) The regulations may, in particular, describe needs by reference to—

(a) the effect that the needs have on the adult concerned;

(b) the adult's circumstances.”




‘needs for care and support’

6. The words “care and support” are used throughout the legislation. Section 21 of

National Assistance Act 1948 used the well know phrase “care and attention”.

Arguably “support” is narrower than “attention” in that it might exclude more

passive needs, such as a need to be monitored. However this is unlikely to make

much difference in practice, not least because the Supreme Court confirmed in SL v.

Westminster that “something well beyond mere monitoring of an individual’s

condition is required” for there to be a need for care and attention.1

7. The criteria are focussed on the adult’s individual ‘needs’ and require them to be

identified first before a determination is made regarding their eligibility under the

criteria: the term ‘presenting needs’ is used explicitly in the Guidance.

8. It was common under the FACS/Prioritising Need Guidance for local authorities to

fall into the error of essentially categorizing the person as a whole rather than her

individual needs. That said it is clear that a need will meet the eligibility criteria if it

forms “part of a combination of needs of a description” specified in the regulations

(s.13(7)(b)).

9. The concept of “need” is not always easy to grasp and caused significant problems

under the old regime.

10. The OED defines the need as “a thing that is wanted or required.”

11. The early DOH guidance recognised that “need is a complex concept which has been

analysed in a variety of different ways”, and referred to it in that context as being

“shorthand for the requirements of individuals to enable them achieve, maintain or

1 [2013] UKSC 27 at [44] This was because s.21 NAA 1948 is primarily concerned with the provision of accommodation and therefore the meaning of ‘need for care and attention” had to “take some colour from that.




restore an acceptable level of social independence or quality of life”, which might be

sub-divided into specific categories such as personal care or accommodation.2

12. Furthermore, the courts have declared “need” to be a “relative concept, which

trained and experienced social workers are much better equipped to assess than are

lawyers and courts” (Hale LJ in R (Wahid) v. Tower Hamlets LBC [2001] EWHC 641).

13. Indeed, how to articulate and define a ‘need’ was arguably never really settled under

the old law. Lord Ker said this in the well known case of MacDonald v. Kensington &

Chelsea [2011] UKSC 33 (emphasis added):

“38 In my opinion, therefore, the Court of Appeal's decision can only be upheld on the

basis that, although the respondent did not intend to carry out a re-assessment of

the appellant's needs on November 4, 2009 or April 15, 2010, in fact the exercise then

conducted yielded sufficient information to allow the court to conclude that the

appellant's needs could properly be re-cast and warranted a change in the means by

which those needs may legally be met.

39 This is, at first sight at least, not an easy conclusion to reach. Ms McDonald's

needs were precisely the same as they had been when they were originally assessed.

The change had come about not because there had been any authentic re-evaluation

of what the appellant's needs were but because it was felt necessary to adjust how

those would be expressed in order to avoid undesired financial consequences. And

one, somewhat absolutist, way of approaching the case is to say that the appellant is

not incontinent. Incontinence pads are provided for use by those who are. She needs

help to move and she needs to move during the night. Her needs are therefore

related to her difficulty with mobility, not to a problem with incontinence. Properly

understood, she needs help with movement, not services which eliminate the need to

move. On this approach, the deputy High Court judge was wrong to describe the need

as the safety of the claimant and the Court of Appeal was likewise wrong to describe

the need as a need to urinate safely at night. Ms McDonald has no problem in 2 Department of Health Social Services Inspectorate (1991) “Care Management and Assessment: a practitioners’ guide”




urinating safely at night. She does not need assistance to do so. She does need to be

helped to move to a place where she can urinate, however.

40 After some hesitation, I have concluded that this is to take a rather too technical

and inflexible approach to the issue. And I certainly do not think that it can be said

that where the respondent has decided what needs are on one occasion, it is forever

bound to that assessment. The essential question on the first issue, it seems to me,

is whether “needs” partake partly of the means by which the disabilities of the

appellant may be catered for, as well as the actual nature of the disability and, on

reflection, I think that this is the correct approach. In the Guidance on Eligibility

Criteria for Adult Social Care document (issued by the Department of Health on May

28, 2002) the issues and problems that are identified when individuals contact, or are

referred to, councils seeking social care support are defined as “presenting needs”. If

needs are defined as the issues and problems that the particular individual

presents, that would appear to open the way to taking a rather broader view of

what needs means and includes not only the narrow connotation of needs but also

how those needs may be met. On that basis, it can be said that the reviews in 2009

and 2010, although it was not their purpose, in fact involved a re-assessment of the

appellant's needs and that they may now be regarded as the need to avoid having to

go to the lavatory during the night. Viewed thus, the needs can be met by the

provision of incontinence pads and suitable bedding. Not without misgivings, I have

therefore concluded that it was open to the respondent to re-assess the appellant's

needs, to re-categorise them as a need to avoid leaving bed during the night and to

conclude that that need could be met by providing the appellant with the materials

that would obviate the requirement to leave her bed..”

14. The distinction between eligible needs and the means of meeting those needs will

remain critically important under the Care Act as it is only in relation to the latter

that the question of the local authority’s resources will be relevant.

15. The (tentatively expressed) better view may be that under the new law the concept

of ‘need’ will be broadly descriptive in nature and closely related to the adult’s




particular disablement or inability to do something (e.g. an inability to move

independently), rather than a want or requirement for a particular form of “care and

support” (e.g. assistance with travel in the community), and certainly won’t include

any element of how the need will be met (e.g. a personal chauffer) in the manner

explained by Lord Ker in MacDonald).

16. There is some support for this view in the example given of an eligible need in the

Guidance (6..114):

“John Taylor: Needs: ‘Adult on the autistic spectrum’”.

17. Confusingly however, the example given of a ineligible need is defined more broadly:

“Dave Brown: Needs: Dave struggles severely in social situations leading to

difficulties accessing work and cooperating with other people. He only has

transactional exchanges with others and cannot maintain eye contact. Dave knows

that others feel uneasy around him and spends a lot of his time alone.”

“of a description specified in regulations”

18. The relevant regulations are the Care and Support (Eligibility Criteria) Regulations

2015/313 (11 February 2015) and, in relation to adults with a need for care and

support, regulation 2:

“2.— Needs which meet the eligibility criteria: adults who need care and support

(1) An adult's needs meet the eligibility criteria if—

(a) the adult's needs arise from or are related to a physical or mental

impairment or illness;




(b) as a result of the adult's needs the adult is unable to achieve two or more

of the outcomes specified in paragraph (2); and

(c) as a consequence there is, or is likely to be, a significant impact on the

adult's well-being.”

“the adult's needs arise from or are related to a physical or mental impairment or

illness”

19. This is plainly broader than section 29 of the National Assistance Act 1948 which was

restricted to those who are “blind, deaf or dumb or who suffer from mental disorder

or any description and other persons...who are substantially and permanently

handicapped by illness, injury or congenital deformity or such other disabilities as

may be prescribed”, and raises the possibility of persons having eligible needs in

relation to short term illnesses and disablements, perhaps arising out of a period in

hospital. Notably, under the charging provisions local authorities will (still) not be

able to charge for reablement services.

20. The definition in narrower than the duty in s.21(1)(a) of the 1948 Act which included

those who “by reason of age, illness or disability or any other circumstances are in

need of care and attention” and the power in s.21(1)(aa) of the 1948 Act “expectant

and nursing mothers”.

21. However, a power to meet the ineligible needs of such persons will continue after 1

April by virtue of s.19 of the 2014 Act.

22. The use of the term “or are related to” is welcome as it will include needs that are

only arise indirectly because of a physical or mental impairment.

23. There is cause to be wary of the relevant passage of the Guidance however:




“6.105 The first condition that local authorities must be satisfied about is that the

adult’s needs for care and support are due to a physical or mental impairment or

illness and that they are not caused by other circumstantial factors. Local authorities

must consider at this stage if the adult has a condition as a result of either physical,

mental, sensory, learning or cognitive disabilities or illnesses, substance misuse or

brain injury.”

24. The Guidance would be more accurate if it made plain that the need must not be

“solely caused” by other circumstances.

“as a result of the adult's needs the adult is unable to achieve two or more of the

outcomes specified in paragraph (2);

25. It is interesting that the plural (“needs”) is used to make clear that in order to be

eligible each need does have to result in an inability to achieve two or more specified

outcomes and that the needs may be considered collectively. Of course the duty to

meet needs will only apply to those that, either alone or in combination with others,

result in the two or more inabilities.

26. The Regulations set out the meaning of “being unable”:

“being unable to achieve an outcome if the adult—

(a) is unable to achieve it without assistance;

(b) is able to achieve it without assistance but doing so causes the adult significant

pain, distress or anxiety;

(c) is able to achieve it without assistance but doing so endangers or is likely to

endanger the health or safety of the adult, or of others; or




(d) is able to achieve it without assistance but takes significantly longer than would

normally be expected.”

27. This is an important part of the criteria as it speaks to one of the most controversial

aspects of care provision, namely deciding whether someone should be deemed to

be unable to do something that they are in fact doing or achieving. It should result in

a more in depth assessment and analysis of need.

28. Note that the list does not include being able to do something with considerable

difficulty that does not involve a significantly longer time or cause pain/risk but may

for example nonetheless require an unusual amount of energy or motivation.

“two or more of the outcomes specified”

29. The specified outcomes are:

(a) managing and maintaining nutrition;

(b) maintaining personal hygiene;

(c) managing toilet needs;

(d) being appropriately clothed;

(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.

30. This is an exhaustive list. However the examples given in paragraph 6.107 of the

Guidance of how local authorities should consider each outcome are not exhaustive.

Neither are they necessarily particularly enlightening:

“Managing toilet needs

Local authorities should consider the adult’s ability to access and use a toilet and

manage their toilet needs.

Maintaining personal hygiene

Local authorities should, for example, consider the adult’s ability to wash themselves

and launder their clothes.”

31. Notably, the Guidance appears to qualify the criteria by referring to the obligation on

the authority to establish the impact on the adult’s “desired outcomes” (paragraph

6.14). Obviously the application of the criteria cannot depend on the adult

expressing an unsolicited demand to achieve a particular outcome.

32. However, it highly likely that the specified outcomes will become the focal point of

assessments as the inability to achieve something is so closely related to the concept

of need (see above) that it is hard to imagine that busy hard pressed social workers

will be able to resist the temptation to go straight to the outcomes and seek to

establish whether the assessed person can achieve them or not. This would be risky

and inappropriate, not least because of the power that will exist to meet ineligible

needs where, for example, they have a profound impact on wellbeing but do not

actually result in an inability to achieve two or more of the ‘specified’ outcomes.

“as a consequence there is, or is likely to be, a significant impact on the adult's well-

being”




33. “Well-being”, in relation to an individual, means that individual's well-being so far as

relating to any of the following—

“(a) personal dignity (including treatment of the individual with respect);

(b) physical and mental health and emotional well-being;

(c) protection from abuse and neglect;

(d) control by the individual over day-to-day life (including over care and support, or

support, provided to the individual and the way in which it is provided);

(e) participation in work, education, training or recreation;

(f) social and economic well-being;

(g) domestic, family and personal relationships;

(h) suitability of living accommodation;

(i) the individual's contribution to society.”

34. Three points of construction arguably arise.

35. First: it is enough that there is “likely to be” a significant impact. It is not necessarily

obvious how this will be interpreted by the courts but there is no obvious

justification for applying a higher test than “more likely than not.”

36. Second: the “significant impact” must be a consequence of the adult being unable to

achieve two or more of the outcomes. A need which only gives rise to a single

inability will not be eligible irrespective of the severity of the impact on the adult’s

well-being.

37. But what of the adult whose needs result in two inabilities but the local authority

decides that although her wellbeing will be significantly impacted that impact is the

consequence of only one of her inabilities?

38. The Guidance suggests (but obviously cannot be determinative) that a duty will

nonetheless arise:




“6.109 Local authorities must determine how the adult’s inability to achieve the

outcomes above impacts on their wellbeing. Where the adult is unable to achieve

more than one of the outcomes, the local authority does not need to consider the

impact of each individually, but should consider whether the cumulative effect of

being unable to achieve those outcomes is one of a “significant impact on

wellbeing”.

39. Whilst this is probably correct it tends to expose just how arbitrary a requirement is

regulation 2(1)(b). If the purpose of the Act is to ensure those who have a need for

care and support which is having a significant impact on their wellbeing are helped

why include a further statutory hurdle which serves no obvious purpose.

40. Three: the meaning of the word ‘significant’.

41. The Act does not define the term significant and the courts are likely to resist doing

so too:3

‘[i]n my view this court should avoid attempting to explain the word “significant”. It

would be a gloss; attention might then turn to the meaning of the gloss and, albeit

with the best of intentions, the courts might find in due course that they had travelled

far from the word itself.’ (Lord Wilson)

42. The Guidance tries to help (and no doubt risks becoming a gloss too):

“6 .110. The term “significant” is not defined by the regulations, and must therefore

be understood to have its everyday meaning. Local authorities will have to consider

whether the adult’s needs and their consequent inability to achieve the relevant

outcomes will have an important, consequential effect on their daily lives, their

independence and their wellbeing.”

3 Lord Wilson in re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 3315




43. The Guidance also states that in doing so, local authorities should also

consider whether (6.109):

“the adult’s inability to achieve the outcomes above impacts on at least one of the

areas of wellbeing ... in a significant way; or the effect of the impact on a number of

the areas of wellbeing mean that there is a significant impact on the adult’s overall

wellbeing.”

43. And reminds authorities that (6.118):

“When considering the type of needs an adult may have, local authorities should

note that there is no hierarchy of needs or of the areas of wellbeing as described in

chapter 1 of this guidance.”

44. The Guidance is also clear that the assessment should have a subjective steer:

“6 .111. In making this judgment, local authorities 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.”

45. At first blush this seems sensible and desirable. However, does it possibly reprise

the idea of “desired outcomes” and risk a scenario where an adult in need of care

and support is persuaded to say that she doesn’t want a particular outcome when in

fact she doesn’t like how the authority proposes to ensure she achieves it?

Conclusion on the criteria




46. Therefore, despite the bold attempt to establish uniform national eligibility criteria,

subjective and managerial influences will undoubtedly continue to play a major role

in decisions made about who is entitled to care and support. Nonetheless, it is

always worth asking the contrary question – can the level of impact on the adult’s

wellbeing rationally be described as insignificant?

Miscellaneous points about the eligibility criteria

Carer’s support

47. The law and Guidance is clear that care and support that is being provided by a carer

is to be ignored when applying the criteria:

“6 .15. During the assessment, local authorities must consider all of the adult’s care

and support needs, regardless of any support being provided by a carer. Where the

adult has a carer, information on the care that they are providing can be captured

during assessment, but it must not influence the eligibility determination. After the

eligibility determination has been reached, if the needs are eligible or the local

authority otherwise intends to meet them, the care which a carer is providing can be

taken into account during the care and support planning stage. The local authority is

not required to meet any needs which are being met by a carer who is willing and

able to do so, but it should record where that is the case. This ensures that the

entirety of the adult’s needs are identified and the local authority can respond

appropriately if the carer feels unable or unwilling to carry out some or all of the

caring they were previously providing.”

Fluctuating need

48. This is not a new problem. In the case of R (Mani) Lambeth LBC [2003] EWCA Civ 836

the Claimant had a need for care and attention despite the fact that he only needed

help with domestic tasks when his leg was painful.




49. In R (Nasery) v. Brent LBC 2011 ECCA Civ 539 the opposite conclusion was reached in

relation to a man with a personality disorder who had occasional

outbursts/episodes. At the time of his assessment his last such outburst had been

five months previous.

50. Regulation 2(4) deals with this problem explicitly:

“(4) Where the level of an adult's needs fluctuates, in determining whether the

adult's needs meet the eligibility criteria, the local authority must take into account

the adult's circumstances over such period as it considers necessary to establish

accurately the adult's level of need.”

51. This is obviously a tautological statement that begs the question.

52. Thankfully the Guidance does a little better:

“6.58. As the condition(s) of the individual at the time of the assessment may not be

entirely indicative of their needs more generally, local authorities must consider

whether the individual’s current level of need is likely to fluctuate and what their on-

going needs for care and support are likely to be. This is the case both for short-term

fluctuations, which may be over the course of the day, and longer term changes in

the level of the person’s needs. In establishing the on-going level of need local

authorities must consider the person’s care and support history over a suitable

period of time, both the frequency and degree of fluctuation.

The local authority may also take into account at this point what fluctuations in need

can be reasonably expected based on experience of others with a similar condition.

It is important to recognise the benefit of adopting this comprehensive approach to

assessment as the consideration of an individual’s wider wellbeing may allow local

authorities to provide types of care and support, or information and advice which

delay or prevent the development of further needs in the future.




6.59. The assessment should also include a consideration of the individual’s wider

care and support needs. This may include types of care and support the individual

has received in the past and their general medical history, which may be indicative of

their current care and support needs.

6 .117. Individuals with fluctuating needs may have needs which are not apparent at

the time of the assessment, but may have arisen in the past and are likely to arise

again in the future. Therefore local authorities must consider an individual’s need

over an appropriate period of time to ensure that all of their needs have been

accounted for when eligibility is being determined. Where fluctuating needs are

apparent, this should also be factored into the care plan, detailing the steps local

authorities will take to meet needs in circumstances where these fluctuate. For

example, an adult with a mental illness, which has been managed in the past eight

months but which could deteriorate, if circumstances in the adult’s life change. In

such situations, local authorities must consider the nature of the adult’s needs have

been over the past year to get a complete picture of the adult’s level of need.”

Panels

53. The (often controversial) practice of using panels in the making of decisions about

eligibility and care provision is not prohibited under the new regime. The Guidance

states:

“10.85. Due regard should be taken to the use of approval panels in both the

timeliness and bureaucracy of the planning and sign-off process. In some cases,

panels may be an appropriate governance mechanism to sign-off large or unique

personal budget allocations and/or plans. Where used, panels should be

appropriately skilled and trained, and local authorities should refrain from creating

or using panels that seek to amend planning decisions, micro-manage the planning

process or are in place purely for financial reasons.

Local authorities should consider how to delegate responsibility to their staff to

ensure sign-off takes place at the most appropriate level. In cases or circumstances




where a panel is to be used, and where an expert assessor has been involved in the

care and support journey, the same person or another person with similar expertise

should be part of the panel to ensure decisions take into account complex or

specialist issues.”

What happens next?

Duty to notify the adult of the decision and reasons

54. Under the old law there was no statutory requirement that an eligibility assessment

be recorded in writing or for reasons to be given for any decision as regards

eligibility. All Section 47(1) of the National Health Service and Community Care Act

1990 required was that where it appeared to a local authority that any person for

whom they may provide community care services may be in need of such services

they should carry out an assessment of his needs for those services and having

regard to the result of that assessment shall decide whether his needs call for the

provision of services albeit in practice local authorities had standard assessment

forms.

55. Section 13(2) of the Care Act 2014 requires the assessor to give a written record of

the determination and the reasons for it. This determination of eligibility will be

challengeable on public law grounds in the normal way.

56. In R v Brent LBC, ex p. Baruwa (1997) 29 HLR 915 at 929 CA, Schiemann LJ stated:

“It is trite law that where, as here, an authority is required to give reasons for its

decision it is required to give reasons which are proper, adequate, and intelligible

and enable the person affected to know why they have won or lost. That said,

the law gives decision makers a certain latitude in how they express themselves

and will recognise that not all those taking decisions find it easy in the time

available to express themselves with judicial exactitude.”




57. In R v Brent LBC, ex p. Bariise (1999) 31 HLR 50 at 58 CA, Millet LJ stated:

“I recognise that it may not be sufficient for the decision-maker merely to state

that he has considered all the material put before him. If there is something

which is so startling that one would not expect it to pass without individual

comment, the court may be justified in drawing the inference that it has not

received any or sufficient consideration.”

Some eligible needs: “consider what could be done to meet those needs that do”

58. Section 13(3) deals with the situation where at least some of the adult’s needs

meet the criteria.

“(3) Where at least some of an adult's needs for care and support meet the eligibility

criteria, the local authority must—

(a) consider what could be done to meet those needs that do,

(b) ascertain whether the adult wants to have those needs met by the local

authority in accordance with this Part, and

(c) establish whether the adult is ordinarily resident in the local authority's

area.”

59. The Guidance explains that this duty (6.140):

“does not replace or pre-empt the care and support planning process (see chapters

10 –13), but is an early consideration of the potential support options, in order to

determine whether some of those may be services for which the local authority

makes a charge. Where that is the case, the local authority must carry out a financial

assessment (see chapter 8).”




60. It should not be presumed that s.13(3)(b) will be unproblematic. The Guidance

states:

“6 .140. If the adult has some eligible needs, the local authority must:

•Agree with the adult which of their needs they would like the local authority to

meet. The person may not wish to have support in relation to all their needs – they

may, for example, intend to arrange alternative services themselves to meet some

needs. Others may not wish for the local authority to meet any of their needs, but

approach the authority only for the purposes of determining eligible needs.”

61. Local authorities often proclaim that someone did not cooperate with or refused

offers of particular services to meet their needs (see above in relation to ‘desired

outcomes’). This must not be conflated with the broader generic question – does

the adult want help from the local authority in meeting her needs?

62. As regards s.13(2)(c), ordinary residence is dealt with a distinct topic elsewhere in

these notes. However, it is important to note that OR is not treated as a prior

question and local authorities must assess and determine the eligibility of needs

even if they have reason to believe the person may not be ordinarily resident in their

area, not least because they retain a power to meet the eligible needs of such a

person.

No eligible needs

63. Section 13(5) deals with the situation where none of the adult’s needs meet the

criteria.

“(5) Where none of the needs of the adult concerned meet the eligibility criteria, the

local authority must give him or her written advice and information about—




(a) what can be done to meet or reduce the needs;

(b) what can be done to prevent or delay the development of needs for care

and support,

or the development of needs for support, in the future.”

64. This is obviously a key component of the overarching duty on local authorities

contained in s.2 of the Act to prevent needs for care and support arising. This is also

dealt with elsewhere in this paper.




DUTIES AND POWERS TO MEET NEEDS FOR CARE AND SUPPORT

The duties

65. The duty to meet needs for care and support is contained in s.18 of the Act:

“18 Duty to meet needs for care and support

(1) A local authority, having made a determination under section 13(1), must meet

the adult's needs for care and support which meet the eligibility criteria if—

(a) the adult is ordinarily resident in the authority's area or is present in its

area but of no settled residence,

(b) the adult's accrued costs do not exceed the cap on care costs, and

(c) there is no charge under section 14 for meeting the needs or, in so far as

there is,

condition 1, 2 or 3 is met.

(2) Condition 1 is met if the local authority is satisfied on the basis of the financial

assessment it carried out that the adult's financial resources are at or below the

financial limit.

(3) Condition 2 is met if—

(a) the local authority is satisfied on the basis of the financial assessment it

carried out that

the adult's financial resources are above the financial limit, but

(b) the adult nonetheless asks the authority to meet the adult's needs.

(4) Condition 3 is met if—




(a) the adult lacks capacity to arrange for the provision of care and support,

but

(b) there is no person authorised to do so under the Mental Capacity Act 2005

or otherwise in a position to do so on the adult's behalf.

(5) A local authority, having made a determination under section 13(1), must meet

the adult's needs for care and support which meet the eligibility criteria if—


area but of no settled residence, and

(b) the adult's accrued costs exceed the cap on care costs.

(6) The reference in subsection (1) to there being no charge under section 14 for

meeting an adult's needs for care and support is a reference to there being no such

charge because—

(a) the authority is prohibited by regulations under section 14 from making

such a charge,

or

(b) the authority is entitled to make such a charge but decides not to do so.

(7) The duties under subsections (1) and (5) do not apply to such of the adult's needs

as are being met by a carer.”

66. The duty extends to eligible needs only. It is therefore important for the local

authority to make clear which specific needs, whether alone or as part of a group of

needs, meet the eligibility criteria.




67. Note that there is no duty to meet needs that are being met by a ‘carer’. This term is

defined in s.10(3)(9-11):

“(3) “Carer” means an adult who provides or intends to provide care for another

adult (an “adult needing care”); but see subsections (9) and (10).

(9) An adult is not to be regarded as a carer if the adult provides or intends to provide

care—

(a) under or by virtue of a contract, or

(b) as voluntary work.

(10) But in a case where the local authority considers that the relationship between

the adult needing care and the adult providing or intending to provide care is such

that it would be appropriate for the latter to be regarded as a carer, that adult is to

be regarded as such (and subsection (9) is therefore to be ignored in that case).

(11) The references in this section to providing care include a reference to providing

practical or emotional support.”

68. Therefore, care that is being provided by a ‘non-professional’ carer is to be ignored

when assessing and determining whether any need(s) meet the eligibility criteria,

including determining whether the need(s) will or are likely to have a significant

impact on wellbeing, even though there will be no duty to meet any needs that are

being met by a carer.

69. This is very important as the existence of needs that are being met by a carer may

nonetheless contribute to determination that an adult’s needs are eligible needs and

may result in care and support being provided to meet other needs that are not

being met by a carer and which by themselves would not result in an inability to




meet two or more specified outcomes or have a significant impact on the adult’s

wellbeing.

70. This will also bring much needed clarity to the whole process. The Guidance says at

6.15:

“The local authority is not required to meet any needs which are being met by a

carer who is willing and able to do so, but it should record where that is the case.

This ensures that the entirety of the adult’s needs are identified and the local

authority can respond appropriately if the carer feels unable or unwilling to carry out

some or all of the caring they were previously providing.”

71. Of course, a carer who is meeting an adult’s needs may be entitled to have their

need for support met by the local authority (s.20(1)). The duties and powers in

respect of carers are dealt with elsewhere.

“Self funders”

72. This term refers to people who are assessed as having capital over the limit

(currently £23,750). In general the old law does not require local authorities to

arrange care for self-funders.

73. This changes by virtue of s.18(3) in relation to those self-funders with eligible needs

who they ask the authority to meet their needs and s18(5) in relation to those who

have already exceeded their ‘cap on care costs’.

74. However, principally due to concerns raised by local authorities about a shortage of

available funds, these duties will, save for one caveat, only come into force in April

2016. The caveat is that the duty will apply to self-funders who request their local

authority to arrange their care and it is envisaged that it will be provided in a non-

care home setting.




75. This position is set out in paragraph 8.55 of the Guidance:

“8.55. People with eligible needs and financial assets above the upper capital limit

may ask the local authority to meet their needs. This could be for a variety of

reasons such as the person finding the system too difficult to navigate, or wishing to

take advantage of the local authority’s knowledge of the local market of care and

support services. Where the person asks the local authority to meet their eligible

needs, and it is anticipated that their needs will be met by a care home placement,

then the local authority may choose to meet their needs, but is not required to do

so. In other cases, where the needs are to be met by care and support of some other

type, the local authority must meet those eligible needs.”

The powers

76. The power to meet needs for care and support is contained in s.19 of the Act:

“19 Power to meet needs for care and support

(1) A local authority, having carried out a needs assessment and (if required to do so)

a financial assessment, may meet an adult's needs for care and support if—


area but of no

settled residence, and

(b) the authority is satisfied that it is not required to meet the adult's needs

under section 18.

(2) A local authority, having made a determination under section 13(1), may meet an

adult's needs for care and support which meet the eligibility criteria if—

(a) the adult is ordinarily resident in the area of another local authority,




(b) there is no charge under section 14 for meeting the needs or, in so far as

there is such a charge, condition 1, 2 or 3 in section 18 is met, and

(c) the authority has notified the other local authority of its intention to meet

the needs.

(3) A local authority may meet an adult's needs for care and support which appear to

it to be urgent (regardless of whether the adult is ordinarily resident in its area)

without having yet—

(a) carried out a needs assessment or a financial assessment, or

(b) made a determination under section 13(1).

(4) A local authority may meet an adult's needs under subsection (3) where, for

example, the adult is terminally ill (within the meaning given in section 82(4) of the

Welfare Reform Act 2012).

(5) The reference in subsection (2) to there being no charge under section 14 for

meeting an adult's needs is to be construed in accordance with section 18(6).”

77. These powers, like all powers, must be considered in every case. Local authorities

will not be entitled to fetter their discretion and refuse to exercise them irrespective

of individual circumstances. The consideration of the power will also be the exercise

of a function for the purposes of s.149 Equality Act 2010 (the public sector equality

duty).

78. Notably, the power applies where the authority is not required to meet a particular

need by virtue of s.18(5) - i.e. because the need is being met by a carer.

79. The power could be relevant for authorities who currently have more generous

eligibility criteria that the new eligibility threshold and want to preserve existing




support packages. In any event if an adult is set to lose care because of the new

criteria then the local authority will have to reassess her needs.4

80. Also very important, the power to meet urgent needs (particularly those who may be

terminally ill within the meaning of Welfare Reform Act 2012) before it has assessed

or determined the eligibility of the adult’s needs is retained (s.19(3)).5

Exceptions for persons subject to immigration control

81. The relevant provision is contained in s.21 of the Act:

“21 Exception for persons subject to immigration control

(1) A local authority may not meet the needs for care and support of an adult to

whom section 115 of the Immigration and Asylum Act 1999 (“the 1999 Act”)

(exclusion from benefits) applies and whose needs for care and support have arisen

solely—

(a) because the adult is destitute, or

(b) because of the physical effects, or anticipated physical effects, of being

destitute.

(2) For the purposes of subsection (1),section 95(2) to (7) of the 1999 Act applies but

with the references in section 95(4) and (5) to the Secretary of State being read as

references to the local authority in question.

(3)...

4 R v. Gloucestershire County Council , ex party Barry [1997] AC 5845 As was the case under the old law: s.47(5) of the National Health Service and Community Care Act 1990




(4) The reference in subsection (1) to meeting an adult's needs for care and support

includes a reference to providing care and support to the adult in order to meet a

carer's needs for support.

(5) For the purposes of its application in relation to the duty in section 2(1)

(preventing needs for care and support), this section is to be read as if—

(a) for subsection (1) there were substituted—

“(1) A local authority may not perform the duty under section 2(1) in relation to

an adult to whom section 115 of the Immigration and Asylum Act 1999 (“the

1999

Act”) (exclusion from benefits) applies and whose needs for care and support

have arisen, or for whom such needs may in the future arise, solely—

(a) because the adult is destitute, or

(b) because of the physical effects, or anticipated physical effects, of being

destitute.”, and (b) subsection (4) were omitted.”

82. This replicates the language of s.21(A) of the National Assistance Act 1948 which

stated:

‘A person to whom section 115 of the Immigration and Asylum Act 1999 (exclusion

from benefits) applies may not be provided with residential accommodation under

subsection (1)(a) if his need for care and attention has arisen solely—(a)because he is

destitute; or (b)because of the physical effects, or anticipated physical effects, of his

being destitute.

83. A person to whom section 115 of the Immigration and Asylum Act 1999 (exclusion

from benefits) applies includes those who are not a national of an EEA State (i) with

no leave to enter or remain but require it, (ii) a no recourse to public funds condition

and (iii) whose leave is subject to a maintenance undertaking.




84. The case law established that a need for assistance under s.21 of the 1948 Act does

not arise “solely” from destitution where that need is to any material extent made

more acute by some circumstance other than the mere lack of accommodation or

funds, such as age, illness or disability.6

85. Section.21 of the Care Act 2014 extends this “destitute plus” test to cover all

provision to meet needs for care and support and not just the provision of

accommodation.

86. However, as the s.18 duty only arises in respect of needs that “arise from or are

related to a physical or mental impairment” (and not “any other circumstances”)

s.21 Care Act 2014 may be largely restricted to removing the s.19 power to meet

ineligible needs which arise solely as a result of destitution or the anticipated

physical effects of being destitute and the duty to take preventative measures under

s.2 of the Act.

Schedule 3 of the Nationality, Immigration and Asylum Act 2002

87. Schedule 3 of the NIAA 2002 sets out classes of persons not eligible for

accommodation or support pursuant to section 21(1) or s.29 (s.2 CSDPA 1970)

National Assistance Act 2948. This includes persons granted refugee status by

another EEA State and their dependants, EEA nationals and their dependants (but

not UK nationals), refused asylum seekers who fail to comply with removal

directions, their dependents and persons unlawfully present in the UK.

88. Where a person was rendered ineligible by Schedule 3 local authorities nonetheless

have to provide support if it is necessary for the purpose of avoiding a breach of the

person’s human rights, or necessary to prevent a breach of their rights under the

European Community Treaties.

6 R. v Wandsworth LBC Ex p. O; R. v Leicester City Council Ex p. Bhikha [2000] 1 W.L.R. 2539:32




89. The Care Act 2014 and Children and Families Act 2014 (Consequential Amendments)

Order 2015 amends Schedule 3 to exclude Part 1 of the Care Act 2014 and therefore

the section 2 duty to prevent needs, section 9 duty to assess needs, section 10 duty

to assess a carer’s needs, section 19 power to meet urgent needs or provide services

when an adult is terminally ill, section 20 duty and power to meet carer’s needs

which are not currently excluded.

WHAT CAN BE DONE TO MEET NEEDS

90. The Act does not contain an exhaustive list of what may be provided to meets needs.

Section 8 states:

“8 How to meet needs

(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.

(2) The following are examples of the ways in which a local authority may meet

needs under sections 18 to 20—

(a) by arranging for a person other than it to provide a service;

(b) by itself providing a service;

(c) by making direct payments.

(3) “Care home” has the meaning given by section 3 of the Care Standards Act 2000.




91. Plainly this is expressed in the broadest possible terms and of itself offers none, or

minimal, restriction on the means of meeting needs, whether eligible or otherwise,

available to local authorities.

WHAT CANNOT BE DONE TO MEET NEEDS

92. As stated above, The line between care and support on the one hand and medical

treatment on the other remains the same, with Coughlan [2001] QB 213 and Grogan

[2006] EWHC 44 (Admin) being put of a statutory footing. This is achieved by s.22 of

the Act:

“22 Exception for provision of health services

(1) A local authority may not meet needs under sections 18 to 20 by providing or

arranging for the provision of a service or facility that is required to be provided

under the National Health Service Act 2006 unless—

(a) doing so would be merely incidental or ancillary to doing something else to

meet needs under those sections, and

(b) the service or facility in question would be of a nature that the local

authority could be expected to provide.

(2) Regulations may specify—

(a) types of services or facilities which, despite subsection (1), may be

provided or the provision of which may be arranged by a local authority, or

circumstances in which such services or facilities may be so provided or the

provision of which may be so arranged;

(b) types of services or facilities which may not be provided or the provision of

which may not be arranged by a local authority, or circumstances in which

such services or facilities may not be so provided or the provision of which

may not be so arranged;




(c) services or facilities, or a method for determining services or facilities, the

provision of which is, or is not, to be treated as meeting the conditions in

subsection (1)(a) and (b).

(3) A local authority may not meet needs under sections 18 to 20 by providing or

arranging for the provision of nursing care by a registered nurse.

(4) But a local authority may, despite the prohibitions in subsections (1) and (3),

arrange for the provision of accommodation together with the provision of nursing

care by a registered nurse if—

(a) the authority has obtained consent for it to arrange for the provision of

the nursing care from whichever clinical commissioning group regulations

require, or (b) the case is urgent and the arrangements for accommodation

are only temporary.

(5) In a case to which subsection (4)(b) applies, as soon as is feasible after the

temporary arrangements are made, the local authority must seek to obtain the

consent mentioned in subsection(4)(a).

(6) Regulations may require a local authority—

(a) to be involved in the specified manner in processes for assessing a person's

needs for health care and for deciding how those needs should be met;

(b) to make arrangements for determining disputes between the authority

and a clinical commissioning group or the National Health Service

Commissioning Board about whether or not a service or facility is required to

be provided under the National Health Service Act

2006.

(7) Nothing in this section affects what a local authority may do under the National

Health Service Act 2006, including entering into arrangements under regulations

under section 75 of that Act (arrangements with NHS bodies).




(8) A reference to the provision of nursing care by a registered nurse is a reference to

the provision by a registered nurse of a service involving—

(a) the provision of care, or

(b) the planning, supervision or delegation of the provision of care, other than

a service which, having regard to its nature and the circumstances in which it

is provided, does not need to be provided by a registered nurse.

(9) Where, in a case within subsection (4), the National Health Service Commissioning

Board has responsibility for arranging for the provision of the nursing care, the

reference in paragraph (a) of that subsection to a clinical commissioning group is to

be read as a reference to the Board.


(preventing needs for care and support), this section is to be read as if references to

meeting needs under sections 18 to20 were references to performing the duty under

section 2(1).”

93. Similarly, the Care Act 2014 does not disrupt the relationship between social care

and housing (retained by s.23 of the Act):

“23 Exception for provision of housing etc.

(1) A local authority may not meet needs under sections 18 to 20 by doing anything

which it or another local authority is required to do under—

(a) the Housing Act 1996, or

(b) any other enactment specified in regulations.

(2) “Another local authority” includes a district council for an area in England for

which there is also a county council.





(preventing needs for care and support), this section is to be read as if, in subsection

(1), for “meet needs under sections 18 to 20” there were substituted “perform the

duty under section 2(1)”.

94. The Guidance explains:

“10.23. Sections 21 to 23 of the Act set out the limitations on the circumstances in

which local authorities may meet care and support needs. In particular, they make

clear that local authorities must not meet needs by providing or arranging any health

service or facility which is required to be provided by the NHS, or doing anything

under the Housing Act 1996. The aim of these provisions is to avoid duplication in

the provision of services and facilities, and provide clarity about the limits of care

and support, and the circumstances in which care and support should be provided as

opposed to health services or housing services (or vice versa).”

WHAT CAN CLIENTS EXPECT?

95. The manner in which authorities, having regard to all of the above, will seek or may

be compelled to meet needs, eligible or otherwise, is dealt with elsewhere. But as a

little taste of what may be to come, paragraph 6.63 of the Guidance states:

“At the same time as carrying out the assessment, the local authority must consider

what else other than the provision of care and support might assist the person in

meeting the outcomes they want to achieve. In considering what else might help,

authorities should consider the person’s own strengths and capabilities, and what

support might be available from their wider support network or within the

community to help. Strengths-based approaches might include co-production of

services with people who are receiving care and support to foster mutual support

networks. Encouraging people to use their gifts and strengths in a community setting

could involve developing residents’ groups and appropriate training to support

people in developing their skills.37




Jamie Burton

Doughty Street Chambers

9 March 2015




Documents

2 - Doughty Street Chambers€¦ · Web view · 2015-04-01T +44(0)20 7 404 1313 F +44(0)20 7 404 2289/84. W. www ... The entirety of Part 1 is caught by Schedule 3 Nationality