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The Care Act 2014
Impact on Catastrophic
Injury claims
July 2015
Ian Sinho
Technical Consultant
BLM London
The Care Act 2014 – Impact on Catastrophic
Injury claims
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BLM is grateful to Sue Peters of HCMS for her comments on the text. Inevitably new legislation of this scale
and complexity is giving rise to different interpretations which are starting to appear in Local Authority
stances. This paper will be updated as clarity emerges.
Key Features The Act Applies to adults in England only.
Part 1 came into force on 1/4/2015 – covers local authority’s duty to provide care and support to
persons with eligible needs
The concept of promoting “well-being” is introduced (defined below)
A single national set of eligibility criteria now apply – Local authorities cannot set their own. The
national set requires assistance at roughly the previous “critical” and “substantial” levels.
A duty to assess needs remains but the old “s.47” assessment is replaced by s. 9 of the Act
No longer any distinction between residential and domiciliary care – the old s. 21 and s.29
differences around capital and income are removed - now under one regime.
Consultation under way over capping of benefits. A cap of £72,000 is likely but this will be based
on the Local Authority assessment and cost of eligible needs. However some Cat care regimes
may invoke the cap above which a claimant’s means no longer taken into account.
There are no provisions in the Act that tackle the risk of double recovery – current measures to
deal with that will need to continue.
Introduction
The Care Act 2014 (the Act) applies only in England and only to adults (persons over 18 years). It has
codified more than 50 years’ worth of community care law and policy bringing together the law which was
diffused across a range of statutes, regulations and statutory guidance. The Act is accompanied by 500
pages of statutory guidance and a number of pieces of secondary legislation.
A general theme of the Act is the duty of a local authority to promote an individual’s well- being. Part 1 of
the Act deals with the authority’s duty to provide care and support to persons with identified and eligible
needs. This note is concerned only with Part 1 which came into force on the 1st April 2015. This note will be
updated when necessary as case law under the new Act develops.
Handlers of personal injury claims have become used to confronting the complexity of community care law
as a consequence of a local authority’s duty to carry out an assessment of those in need of care and support
and to provide care and support where a need was identified. The interaction of an authority’s obligations
with the recovery of damages has been the subject of a number of cases over the years. Following Peters v
East Midland SHA [2008] EWHC 778 (QB) a claimant has been under no obligation to utilise care and
support or funds available from a local authority. Nevertheless, the circumstances in which entitlement
arises remain important due to the risk of double recovery, or where the claimant may wish to obtain
authority support, a common situation being where damages are reduced due to contributory negligence.
Care and support provided by a local authority is not a free service like the NHS. A financial assessment of
an adult needing care will determine if some or all of the cost of the services needs to be met by the adult.
The Care Act 2014 – Impact on Catastrophic
Injury claims
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This note deals with the circumstances where a local authority may charge for the services it provides in
response to identifying an eligible need for care and support.
Where a person is entitled to authority care and support as well as damages, central to the authority’s
decision whether to charge is how the value of personal injury damages received should be treated during
the financial assessment. Both the amount of damages as capital, and income generated by the damages
need to be considered. The current capital limit is £23,250 and is inevitably exceeded by an amount of
damages where care and support is included. However, there are situations where personal injury damages
are disregarded. The legislation sets out where either or both of capital and income derived from personal
injury damages should be taken into account or disregarded during the means testing process.
Highlights
The Act came into force on 1st
April 2015. All new assessments of needs for care and support will
be subject to it; existing assessments must be reviewed by April 2016.
Eligibility for care and support is now governed by a single statutory set of criteria (see appendix 2).
This will prevent practices whereby authorities restricted provision to “critical” needs. The new
criteria appear to be aligned to the previous “critical” and “substantial” needs. That could mean that
new assessments will result in eligibility where they would not have done so beforehand. Persons
previously assessed as ineligible may now become entitled to care and support.
Where assessments are carried out, the support needed to meet identified needs must be set out in
a Care and Support plan which should also contain a personal budget. The budget will set out the
cost of the services, or the money available to the adult. Direct payments remain under the Act.
The approach to means testing of benefits is now uniform under The Care and Support (Charging
and Assessment of Resources) Regulations (“CSCAR”) which came into force on 1st
April 2015. It is
no longer open to authorities to set out their own charging policy.
In respect of lump sum damages, income on damages, periodical payments of damages, all are
disregarded when a financial assessment is carried out linked to an assessed need for care and
support. This broadens the previous position on capital and income disregards. Accordingly
claimants can receive local authority support notwithstanding the receipt of damages in more
situations. However, a potential issue remains over PPO payments treated as income (see below)
The legislation has not provided any safeguards against double recovery. Claimants are not
prevented from receiving damages as well as seeking support from the local authority
Although not in force yet, s. 15 of the Act will impose a cap on charges for care which is NIL for
persons below 25 and £72,000 for people over 25. Even if a claimant has personal funds other than
damages which prevent or reduce care and support from the local authority, they become fully
entitled to care and support once the cost of the self- funded care exceeds the cap.
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Injury claims
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In cases of contributory negligence it will remain in the claimants interest to maximise entitlement
to local authority benefits and we should be aware of the entitlement and ask to see the outcome
of the assessment under s.9 of the Act (replaces the “s.47” assessment) and the care and support
plan and personal budget prepared by the local authority.
In full recovery cases the possibility of seeking authority help and/or using the authority to
commission self-funded care should continue to be taken into account when agreeing the final
terms of any settlement or periodical payment order
The Act introduces “carer” assessments i.e. assessments of care and support to people caring for
the injured person.
Transitional provisions
Not all parts of the Act are in force. Part 1 deals with Care and Support and came into force on 1st April
2015. The Care Act 2014 (Transitional Provision) Order 2015 sets out that:
The Act does not apply where a person was in receipt of support or services prior to the coming
into effect of the transitional provision order (1/4/15). However, the local authority must carry out a
review of the person’s case no later than 1st
April 2016 and from that review the Act will apply.
If the authority fails to carry out a review prior to 1st
April 2016, the Act will apply in any event to
that person’s case from that date. That person is to be regarded as having met the eligibility criteria
and entitled to care and support until a review is carried out.
A new assessment carried out after the Act came into force will be subject to the Act.
Relevant provisions of Part 1 of the Act
The Act adopts a single approach to residential care and care in the home (instead of the prior
separate approaches under s. 21 and s. 29 of the National Assistance Act 1948 and accompanying
policy guidance).
S. 8 sets out under “how to meet needs” examples of what may be provided to meet assessed
needs:
accommodation in a care home or in premises of some other type;
care and support at home or in the community;
counselling and other types of social work;
goods and facilities;
information, advice and advocacy.
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Injury claims
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The Authority is under an obligation to carry out a “needs assessment” where it appears that an
adult may have needs for care and support. The obligation arises under s. 9 of the Act and replaces
the familiar “s.47 assessment” that arose under the NHS and Community Care Act..
The existing low level of knowledge of needs is retained. S 9(3) applies the duty to assess regardless
of the level of needs for care and support or the adult’s financial resources. Effectively placing on
statutory footing the common law and statutory guidance position.
The Act at s. 9 (4) sets out what must be covered in the assessments. See appendix 1
Section 10 introduces a new duty to assess the needs of carers in addition to the needs of the
injured person. How this new duty and the availability of support other than to the injured person
will sit with gratuitous care damages and care packages involving family members will need to be
considered though there is unlikely to be a direct overlap between damages to remunerate the
carer and authority support to mitigated the impact on the carer of providing care.
Section 13 introduces the concept of national eligibility criteria (see appendix 2). Previously, local
authorities could set their own eligibility criteria which might exclude all but the most serious of
disabilities (assessed as “critical” need) from care and support. Now a minimum threshold will be
imposed. How this threshold compares to the previous levels adopted by authorities will be
important as it may encompass claimants previously failing on eligibility. The transitional provisions
only cater for people already receiving care and support. It is possible that a person with needs
previously rejected on eligibility grounds could obtain a different result if the national minimum
thresholds are lower than the authority’s previous thresholds
Section 14 provides the power to charge for certain services. To that extent the position is the same
as under the previous legislation where, once eligibility was established, the care and support might
be subject to a charge dependent on the person’s means. However, the means testing and
charging criteria are now contained in a single piece of legislation that applies uniformly to both
residential and home care; authorities lose the ability to set their own charging criteria (other than
to adopt more generous provisions). The Care and Support (Charging and Assessment of
Resources) Regulations (“CSCAR”) also came into force on the 1st
April.
Section 15 introduces a cap on charges by the local authority. The cap will not apply until April 2016
and is currently the subject of consultation as to how it should be administered. The cap is NIL if the
claimant is under 25 years as at the commencement of the capping legislation; it is £72,000 for
other cases. The cap applies where the claimant’s care costs, based on the local authority assessed
eligible needs and value of that care, exceed either NIL or £72,000.
Section 22 preserves the existing dividing line between a local authority’s community care
responsibilities and the NHS’s continuing healthcare responsibilities.
The Care Act 2014 – Impact on Catastrophic
Injury claims
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Section 24 introduces the concept of a “care and support plan” which contains details of the
planned support in response to the needs. The document will also contain a personal budget which
sets out the total money a person is assessed as needing and the cost of services required to meet
those needs. Section 25 sets out what a plan should contain and section 26 what a personal budget
should contain.
The outline is familiar in involving (1) an assessment of needs, (2) the application of eligibility criteria and (3)
the application of means testing to decide whether charges for the services should be made. Again familiar
will be the scheme of capital and income disregards within the charging legislation which determine
whether and to what extent personal injury damages can be taken into account.
Principal differences are around the joined up approach to residential and home care, the national eligibility
criteria, the single charging scheme and the introduction of carer assessments. There is also a broadening of
the capital and income disregards in relation to capital and income derived from personal injury awards.
Capital and Income disregards
The current position
Prior to the Act two different regimes applied to residential and home care. Residential care was subject to
means testing; a number of statutory disregards existed applicable to personal injury damages. No means
testing regulations applied to home care, and hence there were no statutory disregards but authorities were
subject to mandatory guidance known as “Fairer charging”
Residential Care:
Capital comprised of personal injury damages held in trust or controlled by court was disregarded for the
purpose of means testing. It follows that the capital cannot be taken into account by an authority in
deciding whether to charge for residential care. Damages paid directly to the claimant (i.e. neither in trust of
administered by the court or a deputy) are effectively assessable for means testing.
Income on a lump sum or periodical payments is disregarded where funds are administered by a trust or the
court. Periodical payments directly to a claimant are not disregarded
Care at home
Capital: The legislation relating to care at home contained no statutory disregards of capital comprised of
personal injury damages. Following Crofton v NHS Litigation Authority authorities were required to apply
Charging for Residential Accommodation guidance (CRAG) to home care. This effectively put home care
and residential care on the same footing: capital derived from personal injury damages was disregarded.
Income was not subject to any disregard either statutory or by application of CRAG. How it was treated was
governed by policies set down by each local authority. Where it was the authority’s policy to do so (and
invariably this was the case) income derived from personal injury damages and periodical payments could
be taken into account during assessment.
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Injury claims
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The position following the Care Act 2014
There is a single approach to residential care and home care. Both are simply seen as alternative means of
meeting care needs. Further an authority must comply with a statutory method of charging set out in
“CSCAR”. The following applies to both residential and care at home unless said otherwise.
Lump sum damages as capital
Whether in trust or administered by the Court or a Deputy, funds derived from an award of personal injuries
are disregarded during financial assessment of entitlement to residential or home care.
Periodical payments and investment income on damages
Periodical payments and investment income received by a trust, and periodical payments and investment
income on court-controlled funds are disregarded during financial assessment.
However, paragraph 15 (2) of part 1 of Schedule of CSCAR contains a qualification to the disregards such
that a payment for care made at regular intervals is only disregarded where it is intended and used for any
item which was not specified in the personal budget but was specified in the care and support plan.. In
other words used for care which the assessment identified as being a need but which the local authority
would not provide.
The reference to “regular intervals” is being interpreted by some Local Authorities as capturing periodical
payments. The effect of this could be that any periodical payment sum that pays for care would not be
disregarded if it was to be used for care that the LA authority would provide. It would only be disregarded if
used for care which the local authority assessed as being needed but for which the claimant was not eligible
to receive it.
Consequently the position with regard to the disregard of PPO payments is far from settled at this time.
Local Authorities are displaying very different approaches some taking the view that PPO payments should
be disregarded, some not. Ultimately challenging the LA decision may be necessary but is only likely in a
case where it is in the interest of the claimant to support that action.
The Cap on chargeable care costs
Under section 15 (1) a local authority is not permitted to charge for care if the total costs of meeting eligible
needs incurred after the commencement of s. 15 exceeds the cap on care costs. S.15 is expected to come
into force in April 2016.
Draft regulations implementing s. 15 are currently the subject of consultation. The proposed caps are:
Nil where the claimant has eligible needs that commenced before the age of 25 and the adult had
not reached 25 on or before (date of the commencement)
£72,000 in other cases.
The cap only applies to personal care. The board and lodging element of residential care is uncapped.
The impact of the cap is that whatever the position reached by a combination of the means test and
disregards (if any) the authority is capped in its ability to charge the claimant. Once the cap is exceeded care
The Care Act 2014 – Impact on Catastrophic
Injury claims
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is provided free of charge. In catastrophic injury claims the cap may be reach in a short time. However, the
erosion of the cap is based on the local authority assessed eligible needs (which may be less than the total
care provision in the care regime) and local authority rates. Accordingly there is unlikely to be a direct
alignment between payments for a care package and the local authority’s recognition of the payments for
care going to reduce the capped figure. The end result is that significantly more than £72,000 is likely to be
expended on a claimant’s care package before the local authority assesses that the cap has been reached.
The mechanism is that following assessment and the development of a care and support plan, a person
ineligible for local authority funding can do one of two things:
Implement the care in the plan, pay themselves and the local authority will monitor the costs. The
authority will take over funding once the cap is reached.
Allow the authority to commission the care in accordance with the care and support plan and
reimburse the cost to the council. The council will cease requesting reimbursement once the cap is
reached.
Draft regulations to implement the cap and the principles to be followed have been the subject of
consultation. The outcome is awaited. It is possible that Local Authorities will lobby the government to
remove personal injury payments entirely from the capping process with the result that damages payments
will not reduce the cap at all. Again, BLM will update this note if that arises.
The risk of double recovery by claimants
The legislation does not contain any prevention against double recovery. Nothing prevents a person
receiving damages for care and still asking the authority to assess, draw up a care and support plan and
implement that plan. Moreover, even if the person has some liability to pay, subject to the cap, using the
second method above advantage can be taken of the authority’s scale and costs agreements with care
providers.
Given the disregard for capital or income derived from personal injury damages, the only thing that would
stop a claimant now being able to receive paid for support from the authority would be if they had other
financial assets which exceeded the upper capital limit. That would, however, only be a bar to receipt of
support up to the cap of £72,000.
The previous treatment of periodical payments as income for the purposes of home care, and absence of a
cap, effectively ruled out claimants in receipt of periodical payments receiving authority support. Those
restraints are no longer present (though may be subject to the attitude of the local authority to PPO income
– see point above)
Carer right to support
The Government have stated “for the first time carers will be recognised in the law in the same way as those
they care for”. The Act relates to people over the age of 18 who are caring for another adult and provides a
legal right to receive support subject to assessment and eligibility.
Authorities have a responsibility to assess a carer’s need for support. The assessment will consider the
impact of caring on the carer and can be combined with the assessment of the injured person. The carer
The Care Act 2014 – Impact on Catastrophic
Injury claims
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must meet the eligibility criteria which are separately stated to those for the injured person (appendix 2). As
can be seen from the “circumstances” listed for the carer’s eligibility assessment, a need for support would
arise where the provision of the care has an impact on the carer. Guidance issued in connection with the Act
provides an insight into the sort of support that might be considered:
“…the local authority and the carer will agree a support plan, which sets out how the carer’s needs will
be met. This might include help with the housework, buying a laptop to keep in touch with family and
friends or becoming a member of a gym so that the carer can look after their own health”.
It seems that the support is to remedy the impact on the carer of providing the care. It can take many forms
but is aimed at mitigating the impact on the carer of providing the care rather than at the cost of providing
the care itself. Whereas “the object of an award of damages for gratuitous care, held on trust for the carer,
is to enable the voluntary carer to receive proper recompense for his or her services” there is unlikely to be
any overlap between the damages being passed to the claimant to “pay” for the care, and any support from
the authority to mitigate the effects upon them of providing the care.
It is envisaged that one way support could be given to the carer is by providing respite periods during
which the authority provides for care to the injured person if that person agrees. Such care, as it is given to
the injured person, will be subject also to a financial assessment of the injured person. Consequently an
injured person receiving gratuitous care could also be in receipt of care commissioned by the authority as a
way of relieving the impact on the carer.
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Injury claims
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Appendix 1 s. 9 (4) Assessing Needs
(4) A needs assessment must include an assessment of—
(a) the impact of the adult’s needs for care and support on the matters specified in section 1(2),
(b) the outcomes that the adult wishes to achieve in day-to-day life, and
(c) whether, and if so to what extent, the provision of care and support could contribute to the
achievement of those outcomes.
The matters specified in section 1(2) are shown below
(2) “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.
The Care Act 2014 – Impact on Catastrophic
Injury claims
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Appendix 2 National Eligibility Criteria
Extract from The Care and Support (Eligibility Criteria) Regulations 2015
Needs which meet the eligibility criteria: adults who need care and support
2.—(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.
(2) 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.
(3) For the purposes of this regulation an adult is to be regarded as 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.
(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.
Needs which meet the eligibility criteria: carers
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Injury claims
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3.—(1) A carer’s needs meet the eligibility criteria if—
(a) the needs arise as a consequence of providing necessary care for an adult;
(b) the effect of the carer’s needs is that any of the circumstances specified in paragraph (2)
apply to the carer; and
(c) as a consequence of that fact there is, or is likely to be, a significant impact on the carer’s
well-being.
(2) The circumstances specified in this paragraph are as follows—
(a) the carer’s physical or mental health is, or is at risk of, deteriorating;
(b) the carer is unable to achieve any of the following outcomes—
(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.
(3) For the purposes of paragraph (2) a carer is to be regarded as being unable to achieve an
outcome if the carer—
(a) is unable to achieve it without assistance;
(b) is able to achieve it without assistance but doing so causes the carer significant pain,
distress or anxiety; or
(c) is able to achieve it without assistance but doing so endangers or is likely to endanger the
health or safety of the carer, or of others.
(4) Where the level of a carer’s needs fluctuates, in determining whether the carer’s needs meet
the eligibility criteria, the local authority must take into account the carer’s circumstances over
such period as it considers necessary to establish accurately the carer’s level of need.
