Carer’s legal rights: Dispelling the myths

Activity six powerpointInformation correct as of May 2012

Statement one

“Close family members have to provide care to a member of their family if they need it.”

TRUE FALSE

Everyone has the right to choose whether to care or not. There is no legal obligation to care for a close family member.

FALSE

Statement two

“All carers have the right to have their views taken into account when social services is carrying out a community care assessment of the cared for person.”

FALSETRUE FALSE

Social services must consult with carers when undertaking a community care assessment and take account of both the disabled person and the carer’s wishes and preferences.

TRUE

Statement legislation and guidance

Policy guidance to the NHS and Community Care Act 1990 Community Care in the Next Decade and Beyond

Quotations:

“preferences of carers should be taken into account

and their willingness to continue caring should not

be assumed.”

“care plan should be the result of a constructive dialogue

between service users, carer, social services staff and those of any other agency involved.”

Statement three

“Carers who provide a substantial amount of care on a regular basis have additional rights to a ‘carer’s assessment’.”

FALSETRUE FALSE

Carers who provide ‘regular and substantial’ care are eligible for their own assessment carried out by the social services department.

TRUE

Supporting legislation and guidance

The Carers (Recognition and Services) Act 1995: applies to all carers of all ages and was the first piece of legislation to consider carers in their own right.

Requires the social services department to assess a carer’s ability to care, if they provide substantial and regular care, at the time of the cared for person’s assessment.

Statement four

“Carers only have the right to an assessment of their own needs at the time at which the service user’s assessment is being undertaken.”

FALSETRUE FALSE

Carers over the age of 16 have the right to their own separate assessment at a time to suit them. It does not depend on the cared for person agreeing to a community care assessment.

FALSE

Supporting legislation and guidance

Carers and Disabled Children’s Act 2000 applies to all carers over 16 caring for an adult. It enables carers to access an assessment in their own right separate from the cared for person.

Practice guidance under the Carers and Disabled Childrens Act 2000 quotation:

“offer an opportunity for a private discussion in which

carers can candidly express their views.”

Statement five

“Carers should be informed of their right to an assessment.”

FALSETRUE FALSE

The social services department has to inform the carer of their rights to an assessment and the services that are available to support them so that the carer can request an assessment.

TRUE

Supporting legislation and guidance

The Carers (Equal Opportunities) Act 2004, Section 1 : states the LA must inform carers of their rights to an assessment.

Community Care Directions 2004: states social services must provide up to date information in accessible formats on services and entitlements, including the right to an assessment.

Statement six

“Prioritising Need in the Context of Putting People First (guidance on eligibility criteria for social care) 2010 only relates to services users and not carers.”

FALSETRUE FALSE

There is considerable misunderstanding around the position of Carers in relation to eligibility criteria guidance as given in Prioritising Need in the Context of Putting People First. Eligibility criteria relates not only to cared for person but also to Carers. It is therefore policy guidance to address Carers eligible needs under this guidance.

FALSE

Supporting legislation and guidance

Practice guidance under the 2000 Carer and Disabled Children Act:

Requires social services to grade the extent of the risk to the sustainability of the caring role into one of the four risk bandings. If categorised as critical social services must take steps to ensure support is available.

Statement seven

“As carers are not paid council employees, the local authority do not have any legal responsibility to ensure the carer is kept safe from injury when carrying out their caring role.”

FALSETRUE FALSE

Although carers are not employees for the purposes of health and safety legislation, the authority nevertheless owes a duty of care to carers.FALSE

Statement eight

“Carers should always be informed that they have the right to a face to face assessment separate from the cared for person.”

FALSETRUE FALSE

Although self assessment forms are a useful element of self directed support, the carer should always have the opportunity for a face to face discussion, separate from the cared for person.

TRUE

Supporting legislation and guidance

Practice guidance to the Carers and Disabled Childrens Act 2000:

“self assessment forms can help (social services) prepare for assessment…best practice suggests that

they cannot replace face-to-face assessment.”

Statement nine

“Carers have the right to be supported to stay in work, or to return to work, if this is what they want to do.”

FALSETRUE FALSE

Even if the carer is not actively seeking to go back to work or take up a new interest, social services must actively encourage consideration of these areas as part of the carers assessment.

TRUE

Supporting legislation and guidance

• The Carers Equal Opportunities Act 2004: Section 2 of the act places a duty on social services to ensure that work, life long learning and leisure are considered when the carer is assessed.

• Employment Rights Act 1996: Carers have limited rights to take unpaid leave to care for a dependent.

• Work and Families Act 2006: Introduced flexible working rights.

Statement ten

“A carer’s service is anything which helps the carer to care, including personal care for the service user to enable the carer to have a break.”

FALSETRUE FALSE

A carer’s service does not include any intimate personal care to the person for whom they are caring.

FALSE

Supporting legislation and guidance

• Section 2 Carers and Disabled Children’s Act 2000: enables Social Services to provide carers with their own services following an assessment.

• Policy guidance under the Carers Act 2000 and combined policy guidance 2000 & 2004 Acts: gives examples of carers services such as trips, driving lessons, travel assistance, training, laundry, gardening, housework, mobile phone, short holiday, computer, car costs.

Statement eleven

“The NHS have a legal duty to co-operate with local authorities to work constructively together to support carers.”

FALSETRUE FALSE

Although there is no obligation upon the NHS to address the support the needs of carers, the NHS must consider all requests from the local authority to support carers.TRUE

Supporting legislation and guidance

• NHS Act 2006: requires NHS and local authorities to ‘co-operate with one another in order to secure and advance the health and welfare of people’.

• Carer (Equal Opportunities) Act 2004: NHS must give ‘due consideration’ to local authority requests to assist in planning provision to carers and requests for a service eg. moving/handling training.

Statement twelve

“Carers can ask to be registered as a carer at their local GP Practice..”

FALSETRUE FALSE

Primary care providers have been asked to keep an up to date register of all carers in their practice.

TRUE

Supporting legislation and guidance

• Modernising Health and Social Services White Paper 1998: required primary care providers to identify carers and provide support to maintain their health.

• National Carers Strategy 2008: committed £150 million in period up to 2011 to enable PCTs to provide emergency and planned respite breaks for carers.

Statement thirteen

“A patient cannot remain in a hospital bed once they are medically fit to go home, even if the carer is unwilling or unable to provide care.”

FALSETRUE FALSE

A patient needs to be ‘safe for discharge’ in order to return home. Carers cannot be compelled to provide care upon discharge, therefore alternative care may need to be arranged to facilitate a ‘safe’ discharge.

FALSE

Supporting legislation and guidance

Discharge from hospital: pathway, process and practice 2003: provides key general guidance and states that:

Community Care (Delayed Discharge etc) Act 2003: emphasises importance of social services assessing the carers needs when undertaking a community care assessment.

“the engagement and active participation of individuals and their carers as partners is central to the delivery of care and in

planning of successful discharge”

Statement fourteen

“Disabled parents have the right to adequate services to help them undertake their parenting role and to ensure their children do not take on unreasonable caring responsibilities.”

FALSETRUE FALSE

When carrying out a community care assessment it is important to address the whole family circumstances. Young carers should not be expected to carry out ‘inappropriate’ levels of caring.

TRUE

Supporting legislation and guidance

• Carers Recognition & Services Act 1995 and Carers (Equal Opportunities) Act 2004: both apply to all carers regardless of age.

• Children Act 1989: young carers are often entitled to their own services as a ‘child in need’.

• National Framework for Children in Need & their Families: also considers needs of young carers.

Statement fifteen

“Carers have the right to be supported in their own right, rather than just as an unpaid providers of care for disabled people.”

FALSETRUE FALSE

In the last few years, there has been a cultural shift in the way carers have been viewed. Carers should be seen as individuals who have the right to be socially included and offered the life chances which others enjoy.

TRUE

Supporting legislation and guidance

• Carers (Equal Opportunities) Act 2004: recognised that carers have the right to work, education/training and leisure opportunities.

• Coleman v Law judgement• Equality Act 2010: requires public bodies to

assess their policies to see if they have an adverse effect on carers.

FALSE

Carers cannot make major decisions on behalf of the person they care for unless the person lacks capacity under The Mental Capacity Act. The carer can only make decisions if they have Power of Attorney.

FALSE

Statement sixteen

“Carers can make decisions on behalf of those that they care for”

TRUE

• The Mental Capacity Act, 2005 ; defines ‘capacity’ and ‘best interests’ as well as decision making processes that must be followed.

• The Mental Capacity Act, Code of Practice, 2005 ; all staff in health and social care should be aware of and working to this code of practice in terms of important decision making.

Supporting legislation and guidance