Community Care Law

Introduction

Local Authorities and the NHS have duties to assist those with care needs depending upon their circumstances. Sometimes it can be a difficult process navigating the system to obtain that help. We have put together these pages to give  you some guidance so that you may have some idea of what your rights are. You will see in the top menu that there are also links to example cases, letters and other resources.

Legal Issues

Our team has many years of providing advice and representation to those with disabilities and their carers for many issues across community care law, which include but are not limited to:

  1. Assessments of need;
  2. Charges for care;
  3. Right to dignity;
  4. Legal issues relating to problems with independent living services;
  5. Residential care;
  6. Funding for care;
  7. Cuts to services;
  8. Continuing Health Care;
  9. Disabled Facilities Grant / adaptations to the home;
  10. Direct Payments / Personal Budgets.

Please remember community care involves both care that is provided by Local Authorities and also care provided by the NHS through Continuing Health Care. Some of the types of problems that we can provide assistance or advice on are available on our case examples page.

How we can help you

We give advice about all aspects of community care law.  We can advise over the phone or in writing.  Should your particular circumstances warrant further advice or assistance then we may be able to formally take a case on under the Legal Aid Agency’s Legal Help scheme.

In order for us to take on a case under the Legal Help scheme, you must be financially eligible for Legal Help. We will be able to advise you about this when you contact us.  Under the Legal Help scheme, we are able to give general advice, correspond with third parties, assist in making complaints to Local Authorities and/or CCGs, assist with complaints to the Local Government and/or Parliamentary and Health Service Ombudsmen, and access information.

In some circumstances, it may be necessary to take a case to court e.g in order to challenge a  Local Authority’s failure to provide services.  We have experience of Judicial Review procedure and we have a contract with the Legal Aid Agency to obtain Legal Aid funding (subject to merits and financial eligibility) which can cover the cost of proceedings in the High Court.

As a legal charity we are currently only able to provide representation for cases in London, but can provide free advice across England and Wales. If you would like representation please see the following page http://www.dls.org.uk/representation.

Training

We provide bespoke training on many aspects of Community Care law, including mental capacity. If you want to organise training for your organisation then click here.

Community Care Law and The Care Act 2014

The Care Act 2014 Part 1 came into force on 1st April 2015. This now replaces the majority of guidance and law in community care that existed up until that date.

The changes now mean that the previous ‘Prioritising Needs’ guidance and the associated law has been replaced for all cases involving those upward of 18 years of age or those in the transition from children’s to adult’s services. The Children’s Act 1989 is still in force for those under the age of 18.

 

Transition

The immediate question for many is “How does this affect me?”

The answer can be found in the Care Act 2014 (Transitional Provision) Order 2015, which states that you are governed by the previous rules, guidance and regulations until an assessment or review is completed after the 1st April 2015. Everyone in receipt of support must be reviewed or assessed by the 1st April 2016.

 

Where can I find the new rules?

Our resources pages has links to the new guidance as well as the old guidance. There are also links to the old legislation as well as many other resources available on the web from sources which we think may be useful.

The Care Act 2014 – Legislation Page

The Care and Support (Eligibility Criteria) Regulations 2014

The Care Act 2014 – Guidance

The Care Act 2014 – Explanatory Notes

 

What are the key duties under the new act?

Some of the key duties:

  • The duty to promote individual wellbeing (section 1)
  • The duty to prevent the needs for care and support (section 2)
  • The duty to provide information and advice in it’s area (section 4)
  • The duty to promote diversity and quality in the provision of services (section 5)
  • The duty to cooperate with relevant partners (section 6 & 7)

Specific duties:

  • To assess the needs of adults and their carers (section 9(1) and section 10(1))
  • To provide copies of the needs assessment, care and support plan (section 12(3))
  • To meet the needs of those eligible for care (section 18(1) and section 20(1))
  • To make direct payments subject to conditions (sections 31 – 33)
  • To assess a person moving between local authorities (section 37)
  • To meet a person’s care needs during moves/assessment process (section 38)
  • To undertake a safeguarding enquiry where required (section 42)
  • To provide advocates for those that require them (section 67(2))
  • To assess children who are likely to have needs for care and support after they turn 18 (section 58)
  • To assess a child’s carer for a carers assessment (section 60)
  • To assess the needs of a young carer caring for an adult (section 63)

 

The New Eligibililty Criteria under the Care Act 2014

The new eligibility criteria for the Care Act is found in the The Care and Support (Elligibility Criteria) Regulations 2014 section 2. The four sections that you can see below are the key criteria that you must meet in order to be eligible for care.

There are effectively three tests, all found in sub section 1, and the details from them are in sub sections 3, 4 and 5.

“Needs which meet the eligibility criteria: adults who need care and support

Section 2.— ‘The Care and Support (Elligibility Criteria) Regulations 2014

(1) An adult’s needs meet the eligibility criteria if—

(a) the adult’s needs arise from or are related to a physical or mental impairment or illness;

(b) as a result of the adult’s needs the adult is unable to achieve two or more of the outcomes specified in paragraph (2); and

(c) as a consequence there is, or is likely to be, a significant impact on the adult’s well-being.

(2) The specified outcomes are—

(a) managing and maintaining nutrition;

(b) maintaining personal hygiene;

(c) managing toilet needs;

(d) being appropriately clothed;

(e) being able to make use of the adult’s home safely;

(f) maintaining a habitable home environment;

(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; and

(j) carrying out any caring responsibilities the adult has for a child.

(3) For the purposes of this regulation an adult is to be regarded as being unable to achieve an outcome if the adult—

(a) is unable to achieve it without assistance;

(b) is able to achieve it without assistance but doing so causes the adult significant pain, distress or anxiety;

(c) is able to achieve it without assistance but doing so endangers or is likely to endanger the health or safety of the adult, or of others; or

(d) is able to achieve it without assistance but takes significantly longer than would normally be expected.

(4) Where the level of an adult’s needs fluctuates, in determining whether the adult’s needs meet the eligibility criteria, the local authority must take into account the adult’s circumstances over such period as it considers necessary to establish accurately the adult’s level of need. “

The simple version of the above is that a person must:

  1. Be aged over 18; and
  2. Have a physical or mental impairment; and
  3. Have two or more outcomes from sub section 2 (above) that they are unable to achieve; and
  4. That there will be a significant effect on the wellbeing of the person as a consequence.

Timeframes

There are no set timeframes for an assessment to be carried out but the following is detailed in the Care and Support Guidance (see the resources section) which is of some use. Effectively the timeframe should not unduly delay a care provision and should be undertaken in a timely manner.

10.84. While there is no defined timescale for the completion of the care and support

planning process, the plan should be completed in a timely fashion, proportionate to the

needs to be met. Local authorities must ensure that sufficient time is taken to ensure the plan

is appropriate to meet the needs in question, and is agreed by the person the plan is intended

for. The planning process should not unduly delay needs being met.

 

11.5. The process of allocating the personal budget should be completed in a timely

manner, proportionate to the needs to be met. At all times the person should be informed

where they are in the care planning process, what will happen next and the likely timeframes.

 

11.9. There may also be cases where a person prefers to use a mixed package of care

and support. For example, this may be a direct payment to the person for some of their

needs, with the remainder of the personal budget used to meet needs via local authority or

third- party provision, or any combination of the above. The method of allocating the personal

budget should be decided and agreed during the care and support planning process (see

chapter 10). It is important that these arrangements can be subsequently adjusted if the

person wishes this, with the minimum of procedure. The process for allocating and agreeing

the personal budget via the planning process should be as straightforward and as timely as

possible so that the person can access the budget without significant delay.

DLS Community Care Examples

Please find below some examples of some of the types of enquiries that we receive.

 

Case Study 1 – Unlawful blanket policy in relation to night time care

Client: “I had a needs assessment last week with a social worker. I need night time care as well as day time care. The social worker told me that it is the policy of the Local Authority not to provide night time care.”

Breach: It is unlawful to have a blanket policy in relation to night time care. The Local Authority under the Care Act 2014 must assess all needs. Then if those needs are eligible then the Local Authority has a legal duty under the Care Act 2014 to meet those needs.

Advice: Raise a complaint immediately stating that you have been advised that it is unlawful to have a blanket policy like this. Request either an immediate reassessment or that they amend the needs assessment to include the night time needs. If you are not happy with the response or the matter is urgent then please contact us for advice as to potential legal options.

 

Case Study 2 – Unlawful reduction of care package without a lawful assessment

Client: “Our Local Authority have reduced our direct payments without informing us. Our circumstances have not changed, can they do this?”

Breach: It is unlawful to reduce a person’s care package without an assessment of needs. A person, their carer and relevant persons should be involved in the assessment and as such should be aware that it is taking place. This is a breach under the Care Act 2014 and could potentially be a breach of the Human Rights Act if an assessment has not taken place.

Advice: Make a formal complaint and request that the previous care package is put back in place subject to a full assessment.  Request written reasons for their decision and a copy of any relevant documents. If they state that an assessment was carried out then remind them that the assessment is not lawful if you are not involved in the process and that as such they should put the previous care package back in place until any fresh assessment is completed. If you are not happy with the response or if the matter is urgent then please contact us for advice as to potential legal options.

 

Case Study 3 – Unlawful Blanket policy not to provide certain types of adaptations

Client: “Our Local Authority have stated they will not provide us with a adaptations to our property as they say that you cannot have an extention to your house with a Disabled Facilities Grant.”

Breach: The Local Authority has a duty to meet assessed needs in relation to adaptations if they are necessary and appropriate, and so it is unlawful to have a blanket policy refusing an extension as an adaptation method of meeting needs.

Advice: Raise a formal complaint with the Local Authority stating they have a duty to assess needs before making a decision and that it is unlawful to have a blanket policy like this.  Explain the importance of the grant and works to be done to assist the disabled person in question. If you are not happy with the response or if the matter is urgent then please contact us for advice as to potential legal options.

The Community Care / Social Care Resource Page

Please find below a set of links to the key resources which we know of on the internet which may shed some light on community care law and social welfare law.

Adults Social Care

Adult Social Care (now governed by the Care Act 2014)  is the duty and powers of local authorities to provide care to persons within their geographic area. Cases are usually against a local authority and the primary method of redress is either the High Court via way of Judicial Review proceedings but there is also the Complaints system and then the Local Government Ombudsman. The best resource is the Care and Support Guidance (506 pages) which comments on much of the Care Act 2014 and much of the related Guidance. In addition, the annex’s to the Guidance have some excellent material regarding charging for care. It is also essential to have read at least one case to get an over view of how the courts consider their powers when looking at community care cases. If someone just wants to make a complaint against a local authority they can just go to:https://www.gov.uk/complain-about-your-council.

If someone has an issue with receiving care because they are a refugee or asylum seeker then the case of SG v The London Borough of Haringey [2015] EWHC 2579 (Admin) may provide some insight as to rights under the Care Act 2014.

Disabled Children’s Social Care

Care for children with disabilities is provided for under guidance and statutes which are not strictly designed for children with disabilities. The key legislation is S.17 of the Children’s Act 1988 and s.2 of the Chronically Sick and Disabled Persons Act 1970 (“CSDPA 1970”). The CSDPA 1970 is the primary duty for the provision of care for children with disabilities and the article by Steve Broach (link on the DLS site) provides a good ground background to this. The Government Circular which was sent to all local authorities in September 2014 also provides an indication of its importance. Please see also the book ‘Disabled Children’ by Steve Broach and Luke Clements which has great with and answers additional questions.

Disabled Facilities Grants – DFG’s

Disabled Facilities Grants are grants provided by local authorities so as to be able to provide adaptations for those with disabilities so that they can access their homes. Adaptations under £1,000 are free under the Care and Support (Preventing Needs for Care and Support) Regulations 2014. Adaptations between £1,000 and up to £30,000 in England are covered by the Delivering Housing Adaptations for Disabled People Guidance updated in 2015. The below case of Medway Council can be relevant where costs are above £30,000 and discretion is required for the Local authority to pay more. The primary Legislation is the Housing, Grants, Construction and Regeneration Act 1986.

NHS Continuing Care

NHS continuing care cases usually have some involvement of local authorities. This can be the local authority arguing that the NHS should pay for the care as the care needs are due to a ‘Primary health need’. Local authorities are barred by statue for paying the cost in care in such cases. One of the leading cases showing the primary health need direction is the Coughlin case. The primary documents to consider are the national framework for NHS continuing care and Decision Support Tool.  Children have their own guidance which is the National Framework for Children and Young Peoples Continuing Care. The Luke Clements Book Community Care and the Law is also extremely useful.

Welsh Adults, Carer’s and Children’s Social Care

The Social Services and Well-being (Wales) Act 2014 came into force on the 1st April 2016 replacing for wales the previous England and Wales based legislation. This legislation covers the care for adults, children and carers. There are numerous sets of regulations covering every possible area and all are available on the Welsh Government Website: http://www.ccwales.org.uk/regulations-and-codes/. There is also the Code of practice covering the entire act which is available on the same website and broken down into 11 parts. They also have the National Eligibility tool and some excellent Technical briefings on the same site.

Other Useful Care Act Web Resources