Before the Care Act, deciding when a person’s needs called for a service was a professional/practitioner’s decision, shaped and informed by Guidance from the DoH, called Fair Access to Care Services.
When the law changed in 2015, and the Care Act was introduced, it aimed to make standard the notion of what had to be picked up by social services, nationwide.
It did this by reference to a concept of a national line below which nobody should be allowed to fall – nobody should be unable to achieve across the chosen domains of daily living, or at least not left with significant impact from the result of that state of affairs, if their plight arose from or related to physical or mental impairment or illness.
That line is found in the Eligibility regulations and the Guidance from the government explains how they work, in the usual way. Sometimes the Guidance does not quite comply with the rules themselves but that is something to watch out for.
Social care, NHS or outsourced staff making eligibility decisions about funding the needs for which Parliament has made those organisations responsible, need basic legal framework knowledge.
Without it they will not be able to interpret the underlying qualifying criteria, nor be able, properly, to explore the 10 domains or ‘outcomes’ which have been laid down as setting the context and focus for social services.
The Care Act does not limit access to care and support to people identified by disabilities, diagnosis, age or other status.
To be eligible, the need (which is the issue, problem, deficit or effect of the underlying situation) must arise from or relate to physical/mental impairment or illness (which the Guidance makes clear includes disabilities or injuries: Care and Support Guidance 6.104) and meet two other conditions.
A confirmed diagnosis is not ever a prerequisite to Care Act eligibility. Having one, however, is not ‘a sufficient’ for eligibility either. Distinct from the question of impact on their wellbeing, a person’s established condition may not be operating on their ability to achieve to a degree rendering the person unable to achieve, or their inability to achieve may not be caused by the condition, but by destitution, such that they are legitimately regarded as having no care and support needs at all
The Care and Support Guidance requires the Care Act eligibility regulations to be read inclusively. The Guidance says this (paragraph 6.104): local authorities must consider at the eligibility 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”.
The Guidance does not mention personality disorder, but this counts as a mental disorder/disability for Mental Health Act classification purposes, and by implication, it would be a disorder and thus an illness, or a disability for the Care Act.
The Eligibility Criteria regulations make no explicit mention of any domain/outcome about household money management, taking medication, the significance of a tendency to unaware criminal behaviour or the ability to ‘achieve’ in any domain, without the need for restraint/restriction or deprivation of freedom of movement. But these are aspects of life which themselves impinge on daily living and people’s need for assistance, at the very least.
Understanding how law works at a basic level is necessary for everyone, not just professionals, working towards a care or support plan. Legal framework awareness enables appreciating the need for the causal link between the nature of the difficulty being faced, and the resultant inabilities to achieve, and likewise for looking out for that same sort of causal link between one or more inability to achieve, and the impact on the person’s wellbeing.
The Act does not require councils to fulfil personal aspirations or bring about an ideal quality of life but the person’s subjective wishes and hopes for what will come out of engaging with the council, need to be elicited and considered.
The wording of the areas of need relevant to eligibility give meaning to the scope of the services authorised under the Act to meet needs for care or support – responses which amount to doing things for a person that they are unable to achieve alone, as defined.
A further example of why understanding how law works is essential is that whilst the range of Care Act responses is broad (care, support, care home accommodation or in premises of some other type, goods, services, facilities, counselling, social work, advocacy, advice and information) the Act is clearly not intended to stretch to paying for brain surgery, a Master’s degree, lottery tickets, cigarettes or new windows, however beneficial for someone’s perception of their well-being, they might be.
However, it can cover paying for accommodation in ordinary housing as an essential core aspect of the other services having a chance of working so as to meet needs.
This is exceptionally necessary for non-nationals with eligible (or at least some) care and support needs, and usually based on human rights and the power to meet needs.
It is also available to nationals of this country when something to which they could be entitled under a Housing Act duty would not conceivably adequately meet their assessed/eligible (or non-eligible, rarely) needs for care and support.
Section 13 of the Care Act sets out the steps a local authority must take once it is satisfied that an adult seeking help, or a carer presenting in their own right, has at least some needs for care or support.
You can find it here:
https://www.legislation.gov.uk/ukpga/2014/23/section/13
These include determining whether any of the needs meet the eligibility criteria, and giving the adult concerned a written record of the determination and the reasons for it, regardless of the decision going either way, and considering what could be done to meet the eligible needs.
This is to ensure accountability to the rule of law, regarding a potentially life-changing decision required of the council’s staff.
The criteria:
A person must be unable to achieve in two or more domains/outcomes from the list in the Eligibility regulations due to issues arising from or related to physical or mental impairment or illness.
This inability must then give rise to a significant impact on some aspect of wellbeing as described in s1 Care Act.
The Act imposes a general duty on local authorities to promote wellbeing and the features deemed to be included in that concept are set out in s1(2)(a)-(i), including personal dignity and physical, mental and emotional wellbeing.
There is no definition of ‘significant’ but it is intended by the Government to mean having an important, noteworthy and not a minor or trivial effect on the statutory aspects of wellbeing listed in s1 (see Paragraph 6.109 Care and Support Guidance).
Being ‘unable’ has a special meaning allocated to it which providers, advocates and council assessors must understand if wishing to avoid the risk of undermining people’s rightful allocations on assessment and reviews. See the Care and Support Guidance, paragraph 6.105 for this extended definition.
A person is considered unable to achieve a task if they need to receive assistance in order to achieve it. Likewise if attempting a domain task gives rise to significant pain, anxiety, distress, endangerment to self or others, or it takes significantly longer than someone without the difficulty.
Both inability to achieve and its impacts must therefore be considered regardless of what the person’s informal carer is doing, or any other service being accessed (unless, probably, it is through another agency’s duty which is reliably like to continue).
The leading cases are R (Antoniak) v Westminster City Council [2019] EWHC 3465 https://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWHC/Admin/2019/3465.html&query=(.2019.)+AND+(EWHC)+AND+(3465)+AND+((Admin));
And R (AA) v London Borough of Hackney [2021] EWHC 674
https://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWHC/Admin/2021/674.html&query=(.2021.)+AND+(EWHC)+AND+(674)+AND+((Admin))
Regulation 2 of the Eligibility Criteria Regulations sets out the 10 specified outcomes for consideration against the ‘inability to achieve’ test.
These are the management of access to food and hydration, and managing eating/drinking; keeping one’s own body reasonably clean; going to the toilet or getting rid of bodily waste; managing clothing that makes sense for the context and weather; getting about one’s house reasonably safely; keeping one’s home clean and hazard-free and its amenities maintained; developing and maintaining family or other personal relationships; taking up opportunities for working training, learning or volunteering, if of interest; using transport or otherwise accessing medical appointments, shops, and recreational facilities, and providing care for any child in one’s life.
It should be noted that the Guidance does not always read consistently with the definition and its own wider requirement to ignore people’s informal assistance, at the assessment or eligibility stage of the Care Act decision-making process. For example, with regard to the domain related to the state of one’s home, it moves from a proper focus to the person’s ability without assistance, to the consideration of the environment itself, subtly allowing for regard to be paid to the work done by other people, which should be ignored, even if they are willing and able:
“Maintaining a habitable home environment
Local authorities should consider whether the condition of someone’s home is clean and maintained to be safe. This includes having essential amenities (e.g. gas, water and electricity) and support to sustain occupancy.”
Local authorities should consider whether the adult’s inability to achieve outcomes cumulatively impacts at least one of the areas of wellbeing in a significant way; or, whether the effect of the impact on a number of the areas of wellbeing means that there is a significant impact on the adult’s overall wellbeing. See the Care and Support Guidance paragraph 6.108.
Care and Support Guidance paragraph 6.110 states that in making this judgment, local authorities should look to understand the adult’s needs in the context of what is important to them. Needs may affect people differently as what is important to anyone’s wellbeing is not the same. Impacts on wellbeing therefore may also not have the same effect.
This means two people in similar circumstances regarding disability or conditions could end up with different eligibility decisions, even though these decisions cannot be made by reference to informal care networks, as that must be ignored. This could happen if one of them is objectively regarded as sustaining more impact. They might therefore receive more care than the other. Public sector staff find this difficult to absorb and apply because of their equity and diversity training culture, but it is a corollary of the principles that people not experiencing the same thing or extent of impact should not be treated the same without properly considering the relevance of the distinction for the application of the statutory framework.
Care and Support Guidance paragraph 6.114 states there is no hierarchy of needs or areas of wellbeing described.
Paragraph 10.28, Care and Support Guidance explores the concept for use of the council’s powers to meet non- eligible needs. This may include, for example, meeting needs which do not meet the eligibility criteria, for any reason, or eligible needs in circumstances where the duty does not apply (for example, where the person is ordinarily resident in another area).
This power is not relevant where the finding has been that the person does not need care or support at all, however.
Section 19(3) of the Care Act authorises a council to meet needs for care and support for the service user, even before an assessment is done or no eligibility decision has been made. A legal aid law firm, even if it is one that is refusing to offer a person ‘Legal HELP’ (preliminary legal advice) may be more likely to grant itself legal aid for further investigation, because this is a legitimate gateway to legal aid funding. See here for s19 –
Eligibility criteria for informal carers
The community care legal framework values sustaining carers, due to their cost-saving benefits and the ethical and human rights imperative to respect people’s private lives.
If carers opt out of certain tasks regarding eligible needs, having become unwilling, the law is that councils may need to take over, buy in provisions or fund the eligible unmet needs through direct payments.
The Care Act has broadened the definition of carers to increase social capital, emphasising the importance of recognising and supporting them instead of exploiting them.
The Act recognises individuals as carers based on their provision or intent to provide practical or emotional support, though this may not always render them eligible.
While the Care Act means the quantity or the quality of the care provided by carers is irrelevant in determining their right to an assessment or their eligibility for support, it still influences the level of support they receive in terms of a support plan or budget to spend. More input, or input of a heavy duty nature, usually leads to more impact on wellbeing and thus the need for a larger package.
Recognising the value of carers’ contributions, the Act allows councils to ‘invest’ in supporting carers to maintain their caring role. This is because carers sometimes save councils more than the cost of covering the tasks focused on by carers, if the council were to have to meet the cost of withdrawal.
Discussions with carers under the Care Act must be conducted carefully, acknowledging their rights and potential impact on the cost/benefit analysis of care provision. Withdrawal by carers may necessitate a change in care arrangements, and one driven by the council’s financial resources. This is a legal truth that should nevertheless not be exploited or used as a way to manoeuvre unwilling input out of an exhausted carer.
Section 10 of the Act addresses assessment of a carer’s needs for support – https://www.legislation.gov.uk/ukpga/2014/23/section/10
A carer’s assessment is a virtual right, based on an appearance of need, and without regard to the apparent LEVEL of need – not something only necessary if one passes a screening test or process. The scope looks to the future and not merely the short-term present: s10(1) references the future as well as the current situation. There is no duty, as such, to involve the cared-for person, which allows a carer to speak freely about their feelings. The process must have specific regard to the carer’s wish to work or actual working obligations. Even if one is an informal carer who gets paid for doing a part of the care being done, whether privately or under a direct payment, it is still possible to count as a carer for the purposes of the rights thereby triggered by that status. https://www.legislation.gov.uk/ukpga/2014/23/section/10
The carer’s needs must arise as a consequence of providing ‘necessary’ care for an adult, to be eligible and the Care and Support Guidance paragraphs 6.118-119 explain the Government’s view of the meaning of this criterion so as to make it clear that it is not related to the eligibility of the underlying person’s own needs for any Care Act service.
Care and Support Guidance paragraph 6.120 explores the slightly differently worded daily living domains or outcomes regarded as shaping the eligibility threshold for carers, as set out in the regulations (compared to those for adults in need of care themselves).
Significant impact on the carer’s wellbeing is treated by the Guidance, paragraph 6.124 as relevant to whether a carer has needs in the first place in the sense of being unable to achieve, but this is a misreading of the regulations. The regulations provide that a carer meets the eligibility criteria if as a consequence of providing necessary care for a cared-for person’s needs they are unable to achieve one or more of the outcomes, or their mental or physical health is deteriorating or at risk of deteriorating AND there is as a consequence of that fact, there is or is likely to be, a significant impact on the carer’s wellbeing.
Regulation 3 sets out the domains (outcomes) relevant to whether a carer’s needs meet the eligibility criteria.
These relate to carrying out any caring responsibilities the carer has for a child;) providing care to other persons for whom the carer provides care; maintaining a habitable home environment in the carer’s home (whether or not this is also the home of the adult needing care); managing and maintaining nutrition; developing and maintaining family or other personal relationships; engaging in work, training, education or volunteering; making use of necessary facilities or services in the local community, including recreational facilities or services; and engaging in recreational activities.
Paragraph 10.28, Care and Support Guidance explores the concept for use of the council’s powers to meet non-eligible needs. This may include, for example, meeting needs which do not meet the eligibility criteria, for any reason, or eligible needs in circumstances where the duty does not apply (for example, where the person is ordinarily resident in another area).
This power is not relevant where the finding has been that the person does not need care or support at all, however.