The Care Act 2014 introduced rights and duties for individuals providing or intending to provide care to an adult. A carer for this purpose is someone who provides unpaid care and support to another person. This is not the same as someone who provides care professionally, or through a voluntary organisation.
This section relates to adult carers (people over 18) but the Act sets out how local authorities should work with young carers and adult carers of disabled children.
Promoting individual wellbeing
The core duty of the Act is to promote individual wellbeing which should be front and centre for local authorities in undertaking all the duties and functions of the Act.
It is important to remember that this duty does not mean that a local authority must take necessary steps to ensure that a carer’s wellbeing is satisfactory – a carer can always choose to withdraw their input – but it must consider the impact of the carer’s needs in relation to the nine areas described in Section 1. Local authorities must also consider the impact on wellbeing when determining eligibility under Section 13(4) of the Act.
Promoting individual wellbeing can be done in a variety of ways including but not limited to provision of appropriate and proportionate information and advice (the duty in s4 in any event) and through consideration of how preventative measures may prevent, reduce or delay the impact of the carer’s needs on their individual wellbeing (the duty in s2 in any event).
The Act states that it is important to begin with the assumption that the individual is best placed to judge what is important to their wellbeing. Active involvement with the carer is necessary to enable the exploration of needs, priorities, and personal outcomes and how the caring role impacts upon individual wellbeing.
The council must have regard to the importance of beginning with the assumption that the individual is best-placed to judge the individual’s well-being, and ultimately the freedom for carers is that they can stop, if only they trust their council to do a reasonable job of filling the gap that withdrawal or reduction of their input will generate.
Relevant sections of the Act
Primary legislation: https://www.legislation.gov.uk/ukpga/2014/23/section/1
Statutory guidance: Chapter 1 https://www.gov.uk/government/publications/care-act-statutory-guidance/care-and-support-statutory-guidance#general-responsibilities-and-universal-services
Carers’ Assessments
Section 10 places a duty to assess a carer even if there is merely an ‘appearance of need’ for support, regarding a carer in the local authority area. The carer does not have to be ordinarily resident in the area for the duty to arise.
The question which council should pay for the carer’s support comes after the eligibility decision required by s13 if in fact the carer is found to have any needs for support that are eligible. The correct authority for paying is the one where the cared FOR person lives, because that is the one saving as a result of the carer’s efforts.
There is no duty, as such, to involve the cared-for person, which allows a carer to speak freely about their feelings.
Care is deemed to be being provided if practical or emotional support is at least being provided (see s10(11)). This is important where carers may be providing care that fluctuates in nature or over time.
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 threshold for determining an appearance is “where it appears to the local authority that a carer may have support needs (whether currently or in the future)”.
The duty to carry out a carer’s assessment applies regardless of the authority’s view of
- the level of the carer’s needs for support, or
- the level of the carer’s financial resources or of those of the adult needing care.
There is no requirement for the care and support provided by the carer to be ‘substantial’ or ‘regular’ any longer for Care Act identification of a person as a carer. If people are getting Carers Allowance benefits they will have met the test of having ‘regular and substantial caring responsibilities’ for a severely disabled person’ but the two regimes are separate.
The purpose of the carer’s assessment roughly mirrors an assessment of an adult’s needs under Section 9 of the Act. It provides the opportunity to identify, with the carer, their personal outcomes, existing needs, and the impact of the caring role on the carer’s wellbeing. Just as with a person’s own assessment, a carer’s assessment comes with regulations regarding some factors that must be established en route, one of which is whether the caring role is sustainable in the sense that the carer is willing and able to care for the adult needing care (s10(5)).
(5) A carer’s assessment must include an assessment of—
- whether the carer is able, and is likely to continue to be able, to provide care for the adult needing care,
- whether the carer is willing, and is likely to continue to be willing, to do so,
- the impact of the carer’s needs for support on the matters specified in section 1(2), (wellbeing factors)
- the outcomes that the carer wishes to achieve in day-to-day life, and
- whether, and if so to what extent, the provision of support could contribute to the achievement of those outcomes.
During a carer’s assessment, the local authority must provide appropriate and proportionate information and advice to the adult, and should not try not to determine formal eligibility unless and until all preventative measures have been considered.
It is important to note that as soon as an appearance of need has been identified, the assessment process commences and consideration of free Independent Advocacy rights must have preceded the commencement. A carer can require that any person they identify as someone they’d want to be involved, in their assessment of their own support needs, IS involved.
If it is identified that the carer will have ‘substantial difficulty’ in engaging with the process, ie understanding, retaining information, using and weighing the information and communicating their decisions, and there is no other appropriate individual to support them, the local authority, under Section 67 must provide an Independent Advocate. It is not impossible for a carer to be a person with such difficulties, in reality; co-caring is not unusual.
The principles of appropriate and proportionate response should be considered when undertaking a carer’s assessment. This may mean it is appropriate to undertake a joint assessment of both the carer and the adult. In such circumstances both the carer and the cared for must both agree before that can happen – see s12(5).
It may also be appropriate for a carer to undertake a supported self-assessment having received the necessary guidance as to the purpose of and information required in recording their personal outcomes, needs and impact on wellbeing.
The right to this form of assessment is found in the regulations and appears to apply to carers as well as the cared for person. There is provision for the carer to be given information about the person cared for, with that person’s consent or under best interests.
Regardless of the format used to assess the carer, the local authority must be able to identify the level of need and impact a carer may have and how support may be beneficial.
If a carer is deafblind as defined in the regulations, the local authority must arrange for the assessment to be undertaken by an assessor who has specific training and expertise (Care and Support (Assessment) Regulations 2014 (6)).
That due process protection does not extend to the eligibility decision or the support planning decision, however.
A local authority may choose to delegate the function of assessing carers to outsiders under s79 of the Care Act. Anyone chosen, however, must be an appropriately trained individual with ‘skills, knowledge and competence to carry out the assessment’ (r5 (1) of Care and Support (Assessment) Regulations 2014). Where statutory decisions are contracted out and delegated under s79 the council retains responsibility for the assessment and the compliance of the process with the rules. An eligibility decision or a support planning decision can be made by an outsider, if the authority chooses to delegate those decisions as well.
If a referral for a carers’ assessment has been made by a third party, or a carer is offered an assessment in the context of a safeguarding concern about the person cared for, a carer has a right to refuse the assessment under Section 11 of the Act, and the duty is discharged unless or until they change their mind. There are no capacity caveats to that right in s11, which is a difference between carers’ and cared for people’s rights.
A carer has the right to a copy of the completed assessment and to refuse consent to the cared for person getting a copy, if they do not want them to..
Relevant sections of the Act
Primary legislation:
https://www.legislation.gov.uk/ukpga/2014/23/section/10
https://www.legislation.gov.uk/ukpga/2014/23/section/11
https://www.legislation.gov.uk/ukpga/2014/23/section/67
Secondary legislation:
https://www.legislation.gov.uk/uksi/2014/2827/contents/made
Statutory guidance: chapter 6
Eligibility determination
Upon completion of the carer’s assessment local authorities have a duty to determine eligibility, based on the national eligibility criteria under Section 13 and The Care and Support (Eligibility Criteria) Regulations 2015.
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.
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 or otherwise 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 opposed to those for people in need of care themselves) as set out in the regulations.
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 that is the wrong way around.
The regulations provide that a carer meets the eligibility criteria if as a consequence of providing necessary care 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-eligibleneeds. 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 carer in this context 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 20 of the Care Act does not authorise the meeting of urgent need for a carer, unlike s19 does for a person in need of care.
There are three criteria that need to be evidenced.
1. The needs arrive from providing necessary care and support to an adult. Necessary meaning that if the support is not provided by the carer, the adult will not be able to achieve the outcome.
2. As a result of providing the support, the carer’s physical and/or emotional health is impacted or the carer is unable to achieve one or more of the specified outcomes
3. That being unable to achieve the outcome/s or impact on physical or emotional health is or will likely have a significant impact on the carer’s wellbeing
Upon determining eligibility the local authority has the duty to provide a copy of the eligibility determination with reasons either way, (see s13) and appropriate information and advice in relation to the identified eligible or non-eligible needs.
If a carer is assessed to have eligible unmet needs, the relevant local authority must provide a support plan.
The council which has done the assessment must make a decision whether the cared for person is ordinarily resident or in their area, before responding as obliged to the carer. The assumption is made that the same council as is saving the money on the cared for person’s care, as a result of the carer’s input, should be the one paying for the carer’s needs to be met.
This may not be the full picture, of course, if the cared for person is eligible for some other sort of care for which another agency or authority is liable (such as the NHS for CHC or another council for that person’s s117 Mental Health Act aftercare).
In that situation, that other agency or council might be asked to meet the carer’s needs but the one with the duty is the one where the cared for person is ordinarily resident, regardless of that person’s status under health or care legislation.
Relevant sections of the Act
Primary legislation: https://www.legislation.gov.uk/ukpga/2014/23/section/13
Secondary legislation:
https://www.legislation.gov.uk/uksi/2015/313/contents/made
Statutory guidance: Chapter 6
Support planning for eligible carers
Section 20 of the Act defines the duties and responsibilities if a local authority determines eligibility. A carer has a right to a support plan which must include a personal budget – and the way we know that, even though s26 only refers to budgets of the care and support needs of adults, rather than support needs of carers, specifically, is that the Act clearly envisages direct payments for carer’s packages – which can only be derived from a personal budget, in the first place.
A personal budget is a clear statement of the cost of meeting all the eligible unmet needs of the carer. Section 14 of the Act gives the local authority the power to charge. In most cases local authorities do not charge for providing support to carers, in recognition of the valuable contribution that carers make to their local community. However, this is something that the local authority can decide.
The support will be built around the carer’s desired outcomes and securing the best possible value for the carer from their personal budget. The allocated budget can be taken as a direct payment, in full or in part.
Replacement care / Respite
There may be additional funding for the purchase of ‘replacement’ care to be provided directly to the cared for, in particular circumstances and if certain conditions are met (see The Care and Support Guidance, paragraphs 11.42-11.46). This will of course require the consent of the cared for (or a decision made under the Mental Capacity Act (2005) that it is in the best interest of the cared for). In such circumstances any support provided directly to the cared for may be subject to financial assessment to ascertain personal contribution.
‘Respite’ is a service for the person in need, to back fill the absence of their normal carer. The costs are usually to be included in the individual adult’s budget.
The Care Act envisages that some people will be on the point of collapse from caring for someone who is not even drawing on adults’ social services. The import of that is that the person will not have a care package in which respite for the carer could even conceivably be funded.
The Act says that the carer is still entitled to assessment; and still entitled to a personal budget. But the cost of respite that they might so desperately need cannot be included as a service to THEM, UNLESS the person who is to receive the care agrees to receive the service, via that route. This allows a person to refuse to have an assessment, but still receive services, via the carer’s own support package.
Even if the individual is not in receipt of a personal budget, such that the cost of replacing a carer MUST be put in the carer’s budget, only the adult receiving the benefit of the services can be charged…even if the effect IS to help the carer. The Act forbids the charging of the carer, in any circumstances, for the allocation of the budget for care that is to be delivered in that manner. The person receiving the actual care is charged for the care, according to their own resources, even if after only light touch financial assessment, assuming they agree to undergo that process.
A sitting service, if it is just for a short while and all the person doing it would have to do is call for emergency services, in a crisis, might be seen differently, if it enables the carer to get out to the shops or do something that is still of some benefit to the carer as well as the person cared for. So, this approach would legitimise putting sitting services directly into the carer’s package without contravening the prohibition on substitute care without consent.
Analysis of the structure of the duty to meet needs means that the carer gets this sort of support only if the underlying person agrees at least to having the services delivered direct to him or her, if there is no charge to be levied, or where a subsidy is to be given based on that person’s financial assessment; or where there is a full cost charge, their positively asking to have the services delivered by way of provision of care and support to him or her.
Where a local authority is required by this section to meet some or all of a carer’s needs for support but it does not prove feasible for it to do so by providing care and support to the adult needing care, (for instance because the person will not agree to the financial assessment or will not agree to the services being directly provided to them albeit via the carer’s package of support, it must, so far as it is feasible to do so, identify some other way in which to do so. If the person lacks capacity, of course, they will not be able to refuse to be assessed in their own name.
Relevant sections of the Act
Primary legislation: https://www.legislation.gov.uk/ukpga/2014/23/section/20
https://www.legislation.gov.uk/ukpga/2014/23/section/14
Statutory guidance: Chapter 10
Reviews of support plans
If a carer has a support plan, a local authority has a duty to review the plan no less than annually in partnership with the carer and any person whom they may wish to include.
Under s27 the purpose of the review is to explore if the plan is still enabling the carer to meet the outcomes recorded.
A carer has the right to request a review of the support plan in advance of a scheduled annual review which the authority must undertake if it is a ‘reasonable’ request. See notes within the topic of Assessment for parallel provisions for the person cared for.
If the council decides that circumstances have changed in a way that affects a support plan, the council must carry out a carer’s assessment, carry out a financial assessment if it wishes to charge the carer (s14), and make an eligibility determination under section 13(1), and then go on to revise the support plan accordingly, effectively doing another round of proportionate support planning.
Relevant sections of the Act
Primary legislation: https://www.legislation.gov.uk/ukpga/2014/23/section/27
Statutory guidance: Chapter 13
Safeguarding
Sections 42 to 47 identify a local authority’s duties and functions relating to safeguarding adults at risk of or subject to abuse or neglect if they have needs for care and support which prevent them from protecting themselves. s42 only requires safeguarding for people with needs for care and support.
The Guidance states that at a carer has the right to support from the local authority if they “experience intentional or unintentional harm from the adult they are trying to support or from professionals and organisations they are in contact with” (guidance 14.45).
Please note that it takes care not to mention any statutory safeguarding duty to carers but speaks about their relevance to evidence of abuse or neglect or safeguarding processes, elliptically and sets out other ways they can be helped, such as re-assessment, with a review to revising either their or the cared for person’s care plan, or the provision of further information or training,
Relevant sections of the Act
Primary legislation: https://www.legislation.gov.uk/ukpga/2014/23/part/1/crossheading/safeguarding-adults-at-risk-of-abuse-or-neglect
Statutory guidance: Chapter 14 https://www.gov.uk/government/publications/care-act-statutory-guidance/care-and-support-statutory-guidance#safeguarding-1
Independent Advocacy
Local authorities must arrange an independent advocate for any carer who would have substantial difficulty in participating in any of the Care Act processes relevant to the carer, where there is no appropriate individual to support the carer’s participation. An appropriate informal individual cannot be someone that is involved with the carer in a paid capacity providing care or treatment.
When considering if it is necessary to appoint an Independent Advocate a local authority must have regard to the carer’s circumstances including any health-related concerns, disability, and degree of complexity of the carer’s circumstances.
The purpose of an independent advocate or appropriate individual is to maximise the carer’s involvement in the process and facilitate the ability to understand information and advice, retain it, use it to weigh up the options and communicate their preferences.
Relevant sections of the Act
Primary legislation: https://www.legislation.gov.uk/ukpga/2014/23/section/67
Secondary legislation: https://www.legislation.gov.uk/uksi/2014/2824/pdfs/uksi_20142824_en.pdf
Statutory guidance: Chapter 7 https://www.gov.uk/government/publications/care-act-statutory-guidance/care-and-support-statutory-guidance#Chapter7