The Care Act:An introduction and ... - Guildhall Chambers
The Care Act: An introduction and understanding the 5 key principles Rhys Hadden Care Act 2014 the most significant reform of care and support in more than 60 years (Care & Support Minister - Norman Lamb) Consolidates and repeals most principal adult social care legislation Majority of provisions in force on 1st April 2015 Care and Support Statutory Guidance (Oct 2014) Regulations and transitional provisions
Terminology Adult: generally qualified as an adult in need of care and support (i.e. a physical or mental impairment or illness) Carer: someone 18 or over who provides or intends to provide care for someone but is not contracted to provide the care or providing the care as formal voluntary work Individual: either an adult in need or a carer Young carer: carer who is under 18 Five Key Principles Promoting individual wellbeing (s.1)
Preventing needs for care and support (s.2) Promoting integration of care and support (s.3) Providing information and advice (s.4) Promoting diversity and quality in provision of services (s.5) Well-being principle (s.1) General duty to promote an individuals well-being when making any decisions under the Care Act
Ensure that individual needs are met and accommodated, rather than people fitting into a particular type of service Broad concept s.1(2) refers to list of nine factors: (a) personal dignity; (b) physical/mental health/emotional wellbeing; (c) protection from abuse and neglect; (d) control over day-to-day life; (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 adults contribution to society Well-being principle (s.1)
S.1(3) - when discharging any obligation under the Care Act, a local authority must have regard to the following: a)Assumption that the individual is best-placed to judge well-being; b)Individuals views, wishes, feelings and beliefs c)Preventing or delaying development of needs for care and/or support or reducing the needs of either kind that already exist d)Take into account all the individuals circumstances (and nondiscriminatory in terms of stereotyping) e)Individual participating (with support if needs be) as fully as possible in decisions about them f)Balance between the individuals well-being and that of any friends or relatives involved in their care g)Need to protect people from abuse and neglect h)Restrictions kept to the minimum necessary
Well-being principle (s.1) Right to independent living Not expressly mentioned in the Act, but see para 1.19 of guidance: The wellbeing principle is intended to cover the key components of independent living, as expressed in the UN Convention on the Rights of People 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. The language used in the Act is intended to be clearer, and focus on the outcomes that truly matter to people, rather than using the relatively abstract term independent living
Duty to prevent needs (s.2) A local authority must provide services or take steps which it considers will: contribute towards preventing or delaying the development by adults or carers of the need for care or support reduce the need for care and support by adults or carers in its area Must develop clear, local approach to prevention (para 2.22, Guidance) Must identify unmet need in order to identify strategies to improve provision of services (para 2.30) Must share information with local partners (para 2.30) Primary, secondary and tertiary prevention
Integration with the NHS (s.3) Duty to ensure integration of care and support services along with health and health-related services Duty to liaise and coordinate with the local CCGs and NHS bodies Establishment of Better Care Fund Information and Advice (s.4) Enhanced duty to provide adults in need/carers with information about care and support
arrangements in their area Wide range of subject matters Duty to establish and maintain an information and advice service Not simply digital expected to use face-toface contact also (para 3.29, Guidance)
Quality of service provision (s.5) Duty to promote an efficient and effective local market with a view to ensuring that there is a variety of providers and high quality services to choose from Guidance encourages shift to outcomes based commissioning (paras 4.12-20, Guidance)
Need to foster social care workforce which underpins the market (paras 4.21-30) Ensuring choice variety of different providers and different types of services (paras 4.37-49) Rhys Hadden Care Act 2014 Safeguarding
Ordinary residence Advocacy Financial charging (April 2016) Appeals scheme (April 2016) Safeguarding (sections 42-47) "The existing legal framework for adult protection is neither systematic nor coordinated, reflecting sporadic development of safeguarding policy over the last 25 years (Commission for Social Care Inspection) Places safeguarding obligations on statutory footing Section 42 duty to make enquiries if reasonable cause to suspect that an adult in its area:
a) Has needs for care and support; b) Is experiencing, or is at risk of, abuse or neglect, and c) is unable to protect him/herself against the abuse /neglect Definition of abuse No definition of abuse in the Act Guidance provides broad, non-exhaustive list of what may constitute abuse/neglect (para 14.17):
Physical abuse Domestic violence Sexual abuse Psychological abuse Financial or material abuse Modern slavery Discriminatory abuse Organisational abuse Neglect and acts of omission
Self-neglect Safeguarding Adults Boards (s.43) Section 43 duty to establish a Safeguarding Adults Board (SAB) to coordinate safeguarding activity across different bodies and organisations Multi-agency members of SABs will include local authorities, NHS bodies, and the police Required to meet regularly, publishing shared safeguarding plans and publish an annual report Safeguarding adults reviews (s.44) duty to review: where an adult in need in its area has died from abuse or neglect/been subject to serious abuse and neglect, and where reasonable cause for concern about how the SAB,
members of the SAB, or other persons with relevant functions, worked together to safeguard the adult Limits to safeguarding powers No new powers to protect adults from abuse restricted to process obligations only (SABs, make enquiries, etc.) No new powers to carry out duties E.g. right of entry to investigate safeguarding concern Power to remove people in need of care (s.47 of the National Assistance Act 1948) repealed HRA compliant? Positive obligation to safeguard? Ordinary Residence (ss.39-41)
Current law re determination of a persons ordinary residence largely continues Concept of ordinary residence remains applicable i.e. that it refers to a persons abode in a particular place adopted voluntarily and for settled purposes whether of short or long duration (para 19.14; Shah v LB Barnet) Ordinary Residence deeming rules Two deeming rules: 1. Adults in NHS accommodation (s.39(5)): such people are deemed to be ordinarily resident in the area in which they were immediately before they entered the NHS accommodation / ambulance;
2. Adults whose accommodation is arranged by a LA in the area of another LA (s.39(1)). Rule extended to include shared lives scheme accommodation and supported living accommodation. LA responsibility only attaches if the care and support can be met only in the specified accommodation and the accommodation is in England Responsibility will continue even if the person: Moves between different specified types of accommodation in another area takes a direct payment and arranges their own care (paras 19.32 19.34) Disputes and cross-border placements Updated ordinary residence dispute process for LAs (s.40). now incorporates disputes under s.117 Mental Health Act 1983
final determination by Department of Health Cross-border placements (Sch.1 Care Act; Ch.21 Guidance) Importance of being authorities being person centred (para 21.7) Guidance suggests there will be overall little financial disadvantage to cross-border placements All authorities expected to cooperate fully and communicate properly (para 21.8) Four stage process and case study (p.375 Guidance) Independent advocacy (s.67) Duty on local authorities to provide an independent advocate where an adult may have substantial difficulty in:
Understanding relevant information Retaining that information Using or weighing up that information Communicating their wishes and feelings Section 67(3) duty to provide an advocate applies in relation to: needs assessments; childs needs assessments; carers assessments; childs carers assessments; young carers assessments
preparation of care and support/ support plans review of care and support plans/support plans Appropriate person Duty to provide advocate does not apply where appropriate person is available to support and represent the individual Two exceptions (Care and Support (Independent Advocacy Support) (No.2) Regs 2014): 1. An assessment or care plan is likely to result in an NHS body providing accommodation in a hospital for 28 days or more, or a care home for 8 weeks or more, and where the LA is satisfied that it is in the persons best interests to have an advocate appointed 2. Disagreement on a material issue between the individual supporting
the adult/carer and the LA, and where it is agreed that providing an advocate would be in the best interests of the adult/carer. Role of an independent advocate Competency requirements Care and Support (Independent Advocacy Support) (No.2) Regs 2014 Assist individual to obtain care and support and is under a duty to promote their well-being Meet individual in private to ascertain wishes, views and feelings (if individual is able to consent and so wishes) Assist individual to make decisions about care and support or challenge the LAs decisions Ensure individual accesses support they are entitled to and, where necessary, make representations/prepare written report
for review (Reg.5) Bring legal proceedings if disputes cannot be resolved Financial Charging Pre-Care Act duty to charge for residential care; power to charge for non-residential care Care Act introduces power to charge for the
costs of providing social care support services (s.14) New regime to be implemented on 1st April 2016 Charging principles (para 8.2) 230,000 additional assessments predicted Cap on self-funded costs (ss.15-16) From 1st April 2016 care costs capped at 72,000 Cap is lower for those who develop eligible needs and are of working age Set at 0 for those with eligible needs at 18 years old Only applicable to social care costs Not applicable to costs of self-funders
Individual remains liable for daily living costs (12,000 p/a) Example - would take 5 years and a spend of over 135,000 for person in a 25,000 p/a care home to reach cap Changes to capital limits: Upper threshold rising from 23,750 to 118,000 (if a home included) or 27,000 (if no home included) Lower capital limit increases to 17,000 Financial Charging Care and Support (Charging and Assessment of Resources) Regulations 2014. Some key points: Domiciliary care the value of your property cannot be taken into account when the local authority considers how much money you
have LA must take account of disability related expenditure and should not be taken into account when calculating care costs Money held in a personal injury trust/damages from a personal injury award to be disregarded Entitlement to enter a deferred payment scheme (ss.34-35) An individuals finances cannot be taken into account before a needs assessment is carried out, and should have no bearing on the assessment Statutory appeals scheme (s.72) New social care appeals system due to implemented in April 2016 currently subject to consultation
Pre-empts possible rise in number of challenges? According to Government the new process will be: 1. a flexible, local, proportionate system avoiding unnecessary bureaucracy; 2. include an element of independence from the local authority; 3. seek to avoid duplication with existing arrangements for complaints and redress No detail in s.72 to be fleshed out by regulations
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