1. Understanding The Care Act
Key duties and top tips
Tracey Lazard (CEO, Inclusion London)

2. Understanding the Care Act
Look at:
Independent living and the Care Act
Assessments
Eligible needs
Support planning
Dealing with problems

3. What is the Care Act 2014 The Care Act is made up of:
The Care Act itself – a law of Parliament
Regulations – different sets of rules
Statutory Guidance - more detail about how to follow what the Act and the rules say
New legislation covering adults
Local Authorities
Came into force:
April 2015 (most)
April 2016 or later (rest)
The Care Act itself – a law of Parliament: includes duties like the well-being duty, and duties to assess needs and meet them if they are eligible needs
Different sets of regulations – detailed rules about the duties and powers in the Act – eg regulations about eligibility and about direct payments
Statutory Guidance with more detail about how to apply the Act and regulations

4. What is the Care Act 2014 ASSESS DECIDE PROVIDE Same process
Local authorities still have to:
ASSESS
DECIDE
PROVIDE

5. The Care Act and independent living
No right to independent living
Under the Care Act providing social care support services is still understood not as a ‘right’ but as ‘welfare entitlement’
BUT overall the ideas behind the Care Act and the way it is set out is about promoting independent living

6. The Well-being principle
New duty in the Care Act
In everything a local authority does under the Act, they must promote the well-being of the individual. What does well-being mean?
personal dignity and treating you with respect
physical and mental health and emotional well-being
protection from abuse and neglect
Probably the most important new duty – vital people understand this and are able to show their needs and the support they need directly relate back to their well-being

7. The Well-being principle
control over day-to-day life including care and support and the way in which it is provided
participation in work, education, training or recreation
social and economic well-being
domestic, family and personal relationships
suitability of living accommodation
contribution to society
LA must be looking to provide support that enables Disabled people to achieve these things in life

8. The Well-being principle
Local Authorities must:
Begin with the idea that the person knows themselves best;
Think about the person’s views, wishes, feelings and beliefs;
Put things in place to stop the person’s needs getting higher;
In applying the well-being principle in a community care context, councils must have regard to specific factors (s1(3)):
Really important – they must assume person knows best and if there is disagreement about a person needs or support needed LA must have to show why they have decided not to go with persons view

9. The Well-being principle
Local Authorities must:
Make sure the person takes part as far as possible in decisions about their support and has the information and help they need to do so;
Think about both the well- being of the person and the well-being of carers;
Protect people from abuse and neglect
In applying the well-being principle in a community care context, councils must have regard to specific factors (s1(3)):

10. United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) Article 19 – the right to independent living
Art 19: equal right of all disabled people to live in the community, with choices equal to others, including:
opportunity to choose their place of residence and where and with whom they live on an equal basis with others, not obliged to live in a particular living arrangement;
access to a range of support services to support living and inclusion in the community, and prevent isolation or segregation from the community;
community services and facilities for the general population are available on an equal basis for disabled people and are responsive to their needs.
States which are signatories to the Convention must take appropriate and effective measures to facilitate and progressively realise the Convention rights to the maximum of their available resources!
UNCRPD has been ratified by the UK Government, so this requirement of progressive realisation applies as an international legal obligation
Does not apply directly in UK law [unlike UN Convention on Human Rights which has been incorporated into domestic law by the Human Rights Act 1998]
But the UNCRPD has to inform how UK laws such as the Human Rights Act and Equality Act should be applied to disabled people

11. Well-being and independent living – statutory guidance
Although independent living isn’t mentioned in Section 1 of the Care Act (on the well-being principle), the Care Act Statutory Guidance states (para. 1.19):
‘The wellbeing principle is intended to cover the key components of independent living, as expressed in the UN Convention on the Rights of Persons with Disabilities (in particular, Article 19 of the Convention). Supporting people to live as independently as possible, for as long as possible, is a guiding principle of the Care Act.’
Important to refer to !

12. Assessments
It should be easy to get an assessment (or a re-assessment)
They shouldn’t refuse to assess because of whether or not you would have to pay for care
It should normally be a face-to-face assessment – not just a self-assessment questionnaire
LA’s must provide in advance, and in an accessible format, the list of questions to be covered in the assessment.
Assessment - the issue is not getting an assessment but whether it seems like you might be in need of services – not whether you will definitely be eligible
The assessor might not be a qualified social worker but they must have proper training to understand your needs
You can have whoever you want there to support you
The Care Act Guidance (para 6.38) says that local authorities must ‘provide in advance, and in an accessible format, the list of questions to be covered in the assessment’. This is a new principle which is very helpful and has certainly not been common practice so worth pushing for.

13. Assessments
A duty (under s67) to provide independent advocacy support where the authority considers that:- (1) you would have ‘substantial difficulty’ in being involved in your assessment, the preparation of your care and support plan or other processes about care provision (including care reviews, safeguarding enquiries and safeguarding adult reviews; and (2) there is no one appropriate available to support you with the process.
‘Substantial difficulty’ in being involved means having substantial difficulty in any one of the following:
- understanding relevant information
- retaining information
- using or weighing the information, or
- communicating your views, wishes and feelings.

14. Assessments
If social services think you may need help from Health or housing or someone else they must make sure this happens and work jointly with them
The assessor should speak to carers, family or others who can help give information about your needs (if you agree to this)
They should also give you a chance to speak to them separately from your carers or family if you want to, and the same for your carers if they want to, about their own needs
Now social services have a duty to do a carers assessment if it appears the carer may have needs for support – whether currently or in the future’

15. Assessments In the assessment the council has to: Speak to you
Speak to a carer if you agree
Think about how your needs impact on your well-being and what you want to achieve in day-to-day life (new in the Care Act)
Think about what services, information, advice or other things in the community could benefit you (new in the Care Act)
Try and agree with you (and your carer if needed) about what services will meet your needs
Tell you about the amount of charge you may have to pay for any services

16. Assessments - tips
Make sure you clearly flag up all your needs - otherwise they will not be funded. Include the lesser needs as well as the more important ones because they can add up and need to be looked at as a whole.
Explain how your needs affect your well-being
Make sure you emphasise the worst risks that might happen if your needs aren’t met – don’t just think about how you are on a good day.
Make sure carers’ needs are identified and met as well

17. Assessments – the record
It’s VITAL that everything you discuss in the assessment is recorded – get a copy and check it. Ask for missing details to be added.
After the assessment there will be a decision about your eligible needs and what support is to be provided and this needs to be made clear on the record too
With personal budgets/direct payments, it is even more important to get a clear record of everything that has been discussed and agreed

18. Eligibility
The assessment should identify all your needs: but LA’s may only provide support to meet your “eligible” needs – needs they have a duty to meet
The Care Act introduces a new single, national eligibility framework for all Local Authorities – before there were differences between areas
Eligibility needs are those needs LA has a duty to meet
Eligibility = if you pass the test for who the Council will give support to
The Care Act says that local authorities should consider meeting non-eligible needs if it will help to stop them getting worse.
There is a very strong emphasis in the Care Act on local authorities taking preventative and also on looking at the whole person and how their needs add up

19. Eligibility
To be eligible for support, you must meet three requirements:
Your needs must be the result of a physical or mental impairment or illness
As a result you must be unable to achieve two or more of the outcomes set out in the eligibility criteria, and
As a consequence there is likely to be a significant impact on your well-being
The Care Act Guidance says: ‘Significant impact’ means an important effect on your daily life, independence and well-being

20. Eligibility
Eligibility criteria outcomes: (a) managing and maintaining nutrition; (b) maintaining personal hygiene; (c) managing toilet needs; (d) being appropriately clothed; (e) being able to make use of your home safely; (f) maintaining a habitable home environment;

21. Eligibility
Eligibility criteria outcomes: (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; (j) carrying out any caring responsibilities you have for a child.

22. Eligibility
‘Unable to achieve’ an outcome includes being able to achieve it but:
only with assistance, or
doing so (without assistance) takes much longer than for someone else or
doing so (without assistance) causes a lot of pain, distress or anxiety, or
doing so (without assistance) might put you or someone else in danger.
If you have fluctuating needs (needs that change on different days), the local authority must look at them over a long enough period to think about them properly

23. Eligibility and help from carers
NB the decision about your eligible needs must be ‘carer-blind’
This means any help you are getting or could get from carers, whether paid or unpaid, must be ignored when determining whether your needs are eligible
The assessment should record if there is unpaid help that family or other carers are willing to give, and you agree with this
This can be taken into account when the authority decide what support they will provide
But not when deciding what your eligible needs are!
LA’s will take unpaid support from family and friends into account but only if you agree to this . It can be really hard for family/friends to say they can’t or would rather not provide support but its important they and you only agree to including unpaid support that is sustainable and good for you and them! You can refuse if tis is not the case
The assessment should record if there is unpaid help that family or other carers are willing to give, and you agree with this

24. Support planning – how your eligible needs will be met
This is where you have the chance to exercise choice and control about how your needs can best be met - but
the local authority can take a strict approach to only meeting eligible needs, and
in choosing between different practical options for meeting your needs, it may be able to decide to offer an option that is cheaper even though it is not your preferred option.
Everything needs to tie in with the process of the council deciding what you are eligible for
‘In determining how to meet needs, the local authority may also take into reasonable consideration its own finances and budgetary position and must comply with its related public law duties. This includes the importance of ensuring that the funding available to the local authority is sufficient to meet the needs of the entire local population. The local authority may reasonably consider how to balance that requirement with the duty to meet the eligible needs of an individual in determining how an individual’s needs should be met (but not whether those needs are met). However, the local authority should not set arbitrary upper limits on the costs it is willing to pay to meet needs through certain routes – doing so would not deliver an approach that is person-centred or compatible with public law principles.
The authority may take decisions on a case-by-case basis which weigh up the total costs of different potential options for meeting needs, and include the cost as a relevant factor in deciding between suitable alternative options for meeting needs. This does not mean choosing the cheapest option; but the one which delivers the outcomes desired for the best value.’

25. Support planning – challenging cheapest options
The authority may …include the cost as a relevant factor in deciding between suitable alternative options for meeting needs. This does not mean choosing the cheapest option; but the one which delivers the outcomes desired for the best value.’ Paragraph of the Care Act
The concept of well-being is all-important – link your needs and your preferred support back to the specific elements of well-being listed and show how your preferred support best delivers your well-being .
Remember the assumption that you are best placed to judge your well-being
When talking about ‘best value’ and weighing up the ‘total costs of different potential options for meeting needs’, it is worth arguing that these should include costs in the widest sense – for example if a cut to your social care will have knock-on costs to the NHS because of you having poorer mental health or more hospital admissions, or to housing, or to your ability to maintain employment or that of your carers,

26. Support planning –what should you get?
Local authorities can’t have ‘blanket policies’
They can’t impose an upper limit on help
If nothing suitable is available locally for you, ask for evidence that your council is taking steps to arrange or commission a new service
Your support plan must be in writing and address all the ‘how, who, what and when’ and be clear

27. Dealing with problems
If you believe that the Council has acted wrongly, you should ask them clearly in writing to sort things out and explain why
Think about how quickly it needs to be dealt with: if it is urgent, explain why and say clearly when you expect an answer
Under the Care Act there will be a new appeals process about assessments and care decisions
People will be entitled to have help from an independent advocate if they need it

28. Dealing with problems
If necessary make a formal complaint. Ask for a copy of the Council complaints procedure and make sure you follow it
A  template complaint letter is available from: on ‘precedent complaint letter’)
If the situation is serious, urgent or you are not getting anywhere with the other options, you can seek legal advice from a community care solicitor
There are deadlines for legal action so if in doubt get advice early

29. Dealing with problems Resources:
See the ILF FAQs guide, available on these websites:
information-sheets
The FAQs guide also includes a list of other useful resources on community care issues generally and on specific aspects, e.g. charging and claiming disability related expenditure (DRE)
Steve Broach/Monckton Chambers powerpoint slides on the Care Act, available from Inclusion London ( ) or at
Lots of good resources on Luke Clements’s website: