Assessment Notes - Local Government Association

ASSESSING
NEEDS UNDER
THE CARE ACT
2014
Assessing needs under the Care Act 2014
Relevant Statutory Provisions


Care Act 2014 (‘CA 2014’), sections 9 to 12
The Care and Support (Assessment) Regulations 2014 (‘SI 2014/2827’)
Relevant Guidance

1.
Care and Support Statutory Guidance, Department of Health, October 2014,
Chapter 6
Introduction
“The assessment … process is one of the most important elements of the care and
support system. The assessment is one of the key interactions between a local
authority and an individual, whether an adult needing care or a carer. The process
must be person-centred throughout, involving the person and supporting them to
have choice and control.”i
1.1
In the last 60 years, local authorities’ duties to assess the needs of those requiring care
and support have developed incrementally, with the enactment of new legislation and
its subsequent interpretation by the courts. They are presently found in- and defined
by a range of statutes, regulations and higher court decisions. Arguably, they have
focused more on the service available to the individual than on the needs of the
individual themselves.
1.2
Part I of CA 2014 replaces many existing local authority duties to assess need with one
statutory scheme, providing for the assessment of both adults’ and carers’ needs.
1.3
The CA 2014 also reforms the law relating to young carers in transition to adulthood
and the parents of disabled children, who are in the transition process.ii In the latter
case, reference should be made to the reciprocal provisions in the Children and
Families Act 2014.
1.4
This Chapter will explain the new assessment duties in respect of adults and carers and
will outline, among other matters, the circumstances in which local authorities will be
relieved of the duty to assess need, the form of the assessment undertaken and the
matters the local authority is required to consider. In doing so, its purpose is not to
provide a comparative or indeed comprehensive treatment of the new duties, by
reference to existing statutory schemes, but to provide an introduction to sections 9 to
12 of CA 2014 and the related regulations and guidance as a prelude to further
reading.
2.
The duty to assess adults’ needsiii
“The local authority must undertake an assessment for any adult with an appearance
of need for care and support, regardless of whether or not the local authority thinks
the individual has eligible needs or of their financial situation.”iv
2.1
Section 9(1) of CA 2014 creates a duty on the part of local authorities to assess an
adult’s needs for care and support. Though new, the duty is similar to that presently
found in section 47 of the National Health Service and Community Care Act 1990.
When the section comes into force on 1st April 2015, it will replace many existing
duties, including the duty under section 47 above. The CA 2014 uses the term ‘needs
assessment’ to differentiate the new assessment under section 9(1) from the ‘carer’s
assessment’ under section 10(1) of CA 2014 (below).
2.2
Where it appears to a local authority that an adult may have needs for care and
support, it must assess whether the adult does have such needs and, if so, what those
needs are. If he or she has already been assessed under existing legislation, the local
authority will not need to re-assess either him or her or indeed his or her carer merely
because of the change in the law.v However, if the local authority identifies that the
adult’s needs or circumstances have changed, a fresh assessment under the CA 2014
will be required.
2.3
The CA 2014 retains the current, low threshold for assessment - the mere possibility of
needs – to ensure that the requirement to assess in the case of apparent need is not
affected. To that end also, the duty to carry out a needs assessment applies regardless
of the local authority’s view about either the level of the adult’s needs for care and
support or indeed the level of his or her financial resourcesvi.
2.4
The legislation aims to ensure that, wherever possible, the adult assessed is involved in
and, indeed, can lead the assessment of his or her needs. When undertaking the
assessment, therefore, the local authority must involve not only the adult concerned
but:
2.4.1
any carer he or she has; and
2.4.2
any person whom the adult asks the authority to involve or, if the adult lacks
capacity to make such a request, any person who appears to the authority to
be interested in the adult’s welfarevii.
2.5
Accordingly, an adult with care needs can involve their General Practitioner or, for
example, Community Practice Nurse in the assessment process.
2.6
Further, the adult concerned is able to take a leading role in the assessment process by
requesting a ‘supported self-assessment’, enabling him or her to carry out the
assessment jointly with the local authority. The nature and form of the supported selfassessment is explained further below.
2.7
One of the criticisms made of the present legislation is that it focuses more on the
services provided to the adult in need than on his or her needs themselves. The CA
2014 aims, therefore, to make the individual’s needs the focus of any assessment.
Accordingly, a needs assessment must include an assessment of the outcomes that the
adult wishes to achieve in his or her day-to-day life, whether (and to what extent) the
provision of care and support could contribute to achieving these outcomes, and the
impact of the adult’s needs for care and support on his or her:
2.7.1
personal dignity (including treatment of him or her with respect);
2.7.2
physical and mental health and emotional well-being;
2.7.3
control over day-to-day life (including over care and support, or support,
provided to him or her and the way in which it is provided);
2.7.4
participation in work, education, training or recreation;
2.7.5
social and economic well-being;
2.7.6
domestic, family and personal relationships;
2.7.7
contribution to society.
and on
2.8
2.7.8
protection of him or her from abuse and neglect; and
2.7.9
the suitability of his or her living accommodation.viii
The local authority must also consider whether (and to what extent) matters other
than the provision of care and support could contribute to the achievement of the
individual’s stated outcomes, whether the adult might benefit from the provision of
anything that might be available in the community, or indeed the provision of anything
under sections 2 and 4 of the CA 2014, being broadly services, facilities or resources
that will:
2.8.1
contribute to preventing or delaying the development of the adult’s needs for
care and support, or
2.8.2
reduce his or her needs for care and support
and information and advice relating to the availability of care and support to adults in
the local authority’s area.ix
2.9
Once the assessment is complete, the local authority must provide a written record of
it to:
2.9.1
the adult to whom the assessment relates,
2.9.2
any carer that the adult has, if the adult asks the authority to do so, and
2.9.3
any other person to whom the adult asks the authority to give a copy.x
2.10 As will become apparent, many of these requirements, or their equivalent, apply to a
carer’s assessment under section 10 of the CA 2014.
3.
The duty to assess carers’ needsxi
“Where an individual provides or intends to provide care for another adult and it
appears that the carer may have any level of needs for support, local authorities must
carry out a carer’s assessment.”xii
3.1
Section 10(1) of the CA 2014 creates a new duty on the part of local authorities to
carry out an assessment of a carer’s needs for support - a ‘carer's assessment'xiii. By
contrast with the duty to assess under section 9 of the CA 2014, this new duty
represents a material and significant change in the current law. Where it appears to a
local authority that a carer may have needs for support, whether currently or in the
future, the authority must assess whether he or she has such needs, or is likely to do
so in the future, and if so what they are or are likely to be. It follows that only the
appearance of need will be required under section 10 of CA 2014 to trigger the local
authority’s assessment duty. The carer will no longer, therefore, need to request an
assessment or show that he or she provides or intends to provide regular and
substantial care.
3.2
For the purposes of the new duty, a ‘carer’ is defined as “an adult who provides or
intends to provide care for another adult”xiv. Though ‘care’ is not defined in the CA
2014, the Statutory Guidance suggests that it ‘includes both …practical and emotional
support’.xv
3.3
Those who provide or intend to provide care under- or by virtue of a contract, or by
way of voluntary work are an exception. They will not qualify as a ‘carer’ unless, by
reason of their relationship with the adult needing care, the local authority considers it
appropriate to regard them as suchxvi.
3.4
In that regard, it is suggested that a family member, who receives direct payments for
providing care, will often qualify as a carer under section 10 of the CA 2014, though
each case will have to be decided according to its facts.
3.5
As indicated above, the CA 2014’s definition of ‘carer’ has the effect of lowering the
statutory threshold for a carer’s assessment from its current level, which requires a
carer to show that he or she provides ‘a substantial amount of care on a regular basis’,
to a level more consistent with the legislative intent, ensuring that the support needs
of more carers are assessed and met.
3.6
To that end, like the section 9 duty to undertake a needs assessment, the duty under
section 10 applies regardless of the local authority’s views about the level of the
carer’s needs for support or either the level of the carer’s financial resources or those
of the adult needing care.xvii
3.7
The CA 2014 aims to ensure that the needs of the carer are the focus of assessment in
several ways. When carrying out the assessment, the local authority must involve the
carer and any person whom the carer asks the authority to involve.xviii Indeed, like a
needs assessment, a carer’s assessment may take the form of a ‘supported selfassessment’, enabling a carer to take a lead role in the assessment process. This
concept and process is described below.
3.8
Further, the CA 2014 prescribes various matters to which the local authority must have
regard when undertaking a carer’s assessment: whether the carer works or wishes to
do so and whether he or she is participating in or wishes to participate in education,
training or recreation.xix
3.9
In order to ensure its efficacy, the carer’s assessment must include an assessment of:
3.9.1
whether the carer is able, and is likely to continue to be able, to provide care
for the adult needing care,
3.9.2
whether the carer is willing, and is likely to continue to be willing, to do so,
3.9.3
the impact of the carer's needs for support on the matters specified in section
1(2) of the CA 2014xx,
3.9.4
the outcomes that the carer wishes to achieve in day-to-day life, and
3.9.5
whether, and if so to what extent, the provision of support could contribute
to the achievement of those outcomes.
3.10 Additionally, the local authority will be required to consider whether and to what
extent matters other than the provision of support could contribute to the
achievement of the individual’s stated outcomes, whether he or she might benefit
from the provision of anything available in the community, or indeed the provision of
anything under sections 2 or 4 of the CA 2014, namely:
3.10.1
services, facilities or resources which will reduce or contribute to preventing
or delaying the development of the carer’s needs for support, and broadly
3.10.2
the provision of information and advice about the support available for carers
in the local authority’s area.xxi
3.11 When the local authority has completed its assessment it must provide a written copy
of it to:
4.
3.11.1
the carer to whom the assessment relates,
3.11.2
the adult needing care, if the carer asks the authority to do so, and
3.11.3
any other person to whom the carer asks the authority to give a copy.xxii
Supported self-assessmentsxxiii
“Putting the person at the heart of the assessment process is crucial to understanding the
person’s needs, outcomes and well-being, and delivering better care and support.”xxiv
4.1
Both the needs assessment and the carer’s assessment required by sections 9 and 10
of the CA 2014 respectively may take the form of what the CA 2014 describes as a
‘supported self-assessment’, an assessment carried out jointly by the local authority
and the individual in questionxxv, intended to place the individual in control of the
assessment process to a point where he or she completes the assessment form.xxvi
4.2
To encourage a person- rather than service-focused approach to assessment under the
CA 2014, Regulation 2 of SI 2014/2827 requires a local authority to ascertain whether
the individual concerned wants the assessment to take this form.
4.3
If the individual is an adult and has the capacity to take part in a supported selfassessment, the local authority must carry out such an assessment if he or she so
wishes.
4.4
If the individual does not want a supported self-assessment, the local authority will
itself have to carry out the assessment required by the CA 2014.
4.5
If the individual is a child in transition, by contrast, the local authority may undertake a
supported self-assessment if the child so wishes, has the capacity and is competent to
take part in the assessment and, having regard to all the circumstances, the local
authority believes that it is appropriate to carry out a supported self-assessment.
4.6
To facilitate the assessment, the local authority must provide the individual with any
relevant information it may have about him or her and, provided the necessary
consent is obtainedxxvii, about the person needing care.
5.
Combined, joint and combined-joint assessmentsxxviii
“…a holistic approach to assessment which aims to bring together all of the person’s
needs may need the input of different professionals such as adult care and support,
children’s services, housing, experts in the voluntary sector, relevant professionals in
the criminal justice system, health or mental health professionals.” xxix
5.1
Section 12 of the CA 2014 enables a local authority, in prescribed circumstances, to
combine a needs and/or carer’s assessment with the assessment of another person –
whether or not under Part I of the CA 2014 - in one assessment process.
5.2
It may do so however only with the agreement of the adult to whom the needs or
carer’s assessment relates and:
5.2.1
if the combination would include an assessment relating to another adult,
that adult agrees, and
5.2.2
if it would include an assessment relating to a child, including a young carer,
either:
o the child has capacity or is competent to agree a combined
assessment and does so agree, or
o if the child lacks capacity or is not competent to agree, the local
authority is satisfied that combining the assessments would be in the
child’s best interests.xxx
5.3
If the adult does not agree to a combined assessment, the local authority will have to
undertake the assessments separately.
5.4
In prescribed circumstances, the authority may also carry out a needs or carer’s
assessment jointly with, or on behalf of, another body undertaking an assessment of
the adult concerned, or indeed of any other person with whose assessment it would
be reasonable to combine the needs or carer’s assessment. If that body has already
arranged to carry out its assessment jointly with another, the local authority may carry
out its needs or carer’s assessment jointly with (but not on behalf of) them. xxxi The
legislative intention is to facilitate as holistic and efficient an assessment of the
individual’s needs as possible.
5.5
In this way, the CA 2014 enables what might be termed a ‘combined-joint’ assessment,
in other words an assessment undertaken by more than one authority in respect of
more than one person.
5.6
The circumstances in which such an assessment might be appropriate are, evidently,
myriad and incapable of exhaustive illustration. By way of example, however, a
combined-joint assessment might be appropriate where a local housing authority
secures out-of-borough accommodation for a homeless applicant and his or her
children. In such a case, if the local authority in whose area the accommodation is
located were to undertake a needs or carer’s assessment, it might do so jointly with
the local housing authority, when it discharges its duties under Part VII of the Housing
Act 1996 and, with the necessary consentsxxxii, might combine the assessment with an
assessment of the children’s needs under section 17 of the Children Act 1989.
5.7
The prospect of combined, joint and combined-joint assessments raises potential legal
and practical issues for the local authorities and other bodies involved. For example,
how might the Data Protection Act 1998 affect their ability to undertake a combined or
combined-joint assessment? How should the local authority deal with a request by the
adult or carer concerned, or his or her representatives, for a joint, combined or
combined-joint assessment? Which body, if any, should take the lead in the
assessment process?
5.8
It is not possible to provide an exhaustive answer to these questions here: again, the
answer will vary according to the facts of the individual case. It is suggested, however,
that the Data Protection Act 1998 is unlikely to present an insurmountable obstacle to
many combined, or combined-joint assessments, as neither is possible without the
consent of the persons concerned.
5.9
If an adult or carer expresses a wish for a combined or joint assessment, or a
combined-joint assessment, the local authority will clearly have to weigh that request
in the balance when it exercises its discretion under section 12 of the CA 2014.
Ultimately, however, the exercise of that discretion is a matter for the local authority;
whether it is appropriate to exercise it in the adult or carer’s favour will depend on the
circumstances of his or her case.
5.10 In many cases, it is suggested, it will not be appropriate for one authority to take the
‘lead’ in a joint or combined-joint assessment. Each authority will have its own
functions to perform, applying different statutory criteria; each will remain responsible
for the proper discharge of its duties, and the proper exercise of its powers. In this
regard, trite though it may be, it is important to note that, by enabling either a joint, or
a combined-joint assessment, the CA 2014 does not absolve any of the bodies involved
of their statutory responsibilities, even, it is suggested, when the assessment is
undertaken by one authority on behalf of another in accordance with section 12(7)(a)
of the CA 2014.
5.11 Nevertheless, in cases where an adult or carer is expected to undergo multiple
assessments, or an assessment by a number of bodies, it may be both appropriate and
practical for the local authority and other bodies involved in the assessment process,
to appoint a key-worker, or single point of contact, to co-ordinate the assessment
process. Indeed, the Statutory Guidance recommends as much, subject of course to
the appointment being appropriate.
5.12 Ultimately, it will be for the local authority and other bodies involved in the
assessment process to determine what arrangements work best for the individual
concerned, bearing in mind the need to ensure his or her well-being.
5.13 In that regard, as has already been noted, sections 6 and 7 of the CA 2014 require a cooperative and pragmatic approach to the exercise of a local authority’s functions; all
the more so, it is suggested, in the case joint or combined-joint assessments, which will
necessarily involve multiple agencies and, in some cases, authorities from different
boroughs or counties. The purpose, it is suggested, is to limit the scope for the interdepartmental or indeed cross-borough disputes that have been the subject of litigation
in the past.xxxiii
6.
Refusal of assessment
6.1
In the event that an adult or carer refuses an assessment under section 9 or, as the
case may be, section 10 of the CA 2014, the local authority will not, generally, have a
duty to assess his or her needs.xxxiv There are, however, exceptions to the general rule.
6.2
In the case of an adult refusing a needs assessment, the local authority will still owe a
duty under section 9 of the CA 2014(above) if either:
6.2.1
he or she lacks capacity to refuse the assessment and the local authority is
satisfied that carrying out the assessment would be in his or her best
interests, or
6.2.2
6.3
the adult is experiencing, or is at risk of, abuse or neglect.xxxv
Further if, after a needs assessment has been refused, either:
6.3.1
the adult requests an assessment, or
6.3.2
the local authority thinks that his or her needs or circumstances have
changed,
the local authority will again owe a duty to undertake a needs assessment, subject to
any further refusal on the part of the adult concerned.xxxvi
6.4
Similarly if, after a carer’s assessment has been refused, either:
6.4.1
a carer asks for an assessment, or
6.4.2
the local authority thinks that his or her needs or circumstances have
changed,
the duty to undertake a carer’s assessment under section 10 of the CA 2014 will
‘revive’, subject to any further refusal by the carer.
6.5
The potentially ambulatory nature of a local authority’s duty to assess under sections 9
and 10 of the CA 2014 begs the question: what will amount to a refusal? Conceptually,
an express refusal to engage in an assessment causes little difficulty, but what if the
adult or carer simply does not engage?
6.6
Arguably, an unexplained or inadequately explained failure to engage, despite a local
authority’s proportionate efforts to facilitate an assessment, will constitute a ‘refusal’,
thereby relieving the local authority of its duty to undertake an assessment. If that is
so, it will be for the local authority nonetheless to justify its decision to treat the failure
as a ‘refusal’. Evidently, the proportionality of its efforts will depend on the facts of
the particular case.
6.7
By contrast, if the failure is adequately explained, e.g. because of a relevant disability,
the local authority will need to continue its efforts to undertake an assessment within
the framework of the CA 2014 and, more particularly, Regulation 3 of the Care and
Support (Assessment) Regulations 2014. By way of example, where the local authority
identifies that an adult is unable to engage effectively in the assessment process
independently, it will need to involve – or try to involve – someone who can assist the
adult to engage and to support his or her understanding of the assessment process as
early as possible, in order to facilitate the assessment. The requirement for an
appropriate and proportionate assessment and to ensure that an individual is able to
participate in an assessment as effectively as possible is discussed further below.
6.8
No timescale is provided in the CA 2014 for the care assessment to be either
commenced or completed, though the Statutory Guidance notes that it should be
carried out ‘over an appropriate and reasonable timescale’xxxvii and that the carer
should be advised of the likely timescale.
7.
Form and conduct of assessments
“It is essential that the assessment is carried out to the highest quality…Local
authorities must ensure that their staff have the required skills, knowledge and
competence to undertake assessments and that this is maintained.”xxxviii
7.1
The Care and Support (Assessment) Regulations 2014 (SI 2014/2827) add further
substance to the Act’s provisions about the form and conduct of a needs or carer’s
assessment under section 9 or 10 of the CA 2014. This section of the Chapter covers
some of the Regulations’ additional requirements. The reader is referred to the CA
2014 and Regulations themselves for further detail.
7.2
Generally, the requirement underpinning both assessment duties under sections 9 and
10 of the CA 2014 is that the assessment be undertaken in a manner which:
7.2.1
is appropriate and proportionate to the needs and circumstances of the
individual to whom it relates; and
7.2.2
ensures that he or she is able to participate in the process as effectively as
possible.xxxix
7.3
Local authorities are, therefore, expected to be flexible in the way they undertake their
assessments, tailoring the process to the needs of the individual concerned in order to
obtain a comprehensive picture of his or her requirements. In a given case, that might
involve a supported self-assessment, a combined or joint assessment, an individual
face-to-face or telephone assessment, or indeed a combination of the above.xl It is
suggested, however, that face-to-face assessments are likely to remain the norm in
most cases.
7.4
More specifically, to ensure quality of assessment, the local authority is obliged to
ensure that anyone carrying out an assessment (other than, in the case of a supported
self-assessment, the individual concerned) “has the skills, knowledge and competence
to carry out the assessment in question” and is appropriately trained.xli
If the
individual is deafblind, the person carrying out the assessment must have specific
training and expertise relating to deafblind individuals.xlii
7.5
Two of the themes embedded in the assessment process as a whole are the questions
concerning support that may be required to enable proper engagement and
involvement in the support process (and which may involve the involvement of, for
example, independent advocates) and the impact on the whole family.
7.6
The whole family approach encourages a “holistic” view to be taken of the individual’s
needs and, in the words of paragraph 6.65 of the Statutory Guidance, aims “to identify
how the adult’s needs for care and support impact on family members or others in the
support network”. Such an approach requires the local authority amongst other
matters:
-
to identify those people who may be properly seen as part of the individual’s
network of care and support.
-
to consider whether such people may benefit from information and advice, such
as signposting to any support services in the local community.
-
to identify any children who may be involved in providing care (which may lead,
for example, to a referral for a young carer’s assessment or a needs assessment
under the Children Act 1989, or a young carer’s assessment under section 63 of
the CA 2014).
-
to consider, as also noted at paragraph 7.13 below, the role of any young carer,
whether their responsibilities are appropriate, what the impact of their role as
carer is having on their own wellbeing, welfare, education and development
(taking into account the child’s own view where appropriate).
7.7
To facilitate an appropriate and proportionate assessment, the local authority must
have regard to:
7.7.1
the wishes and preferences of the individual to whom the assessment relates;
7.7.2
the outcome that he or she seeks from the assessment; and
7.7.3
the severity and overall extent of his or her needsxliii
and, in a case where the individual’s level of need fluctuates, the local authority must
take into account his or her circumstances over such period as it considers necessary
to establish his or her level of need accurately.xliv
7.8
Additionally, it must consider the impact of the individual’s needs on any person
involved in caring for him or her and any other person the local authority considers
relevant.xlv
7.9
Given that a local authority will be required to ensure from the first point of contact
that an individual is able to be properly involved in the assessment – in particular, as
paragraph 6.33 of the Statutory Guidance explains, with regard to their ability to
understand the information provided, retain the said information, use or weigh up the
information and communicate views, wishes or feelings – then they may be required
pursuant to section 67(2) of CA 2014 to identify an independent advocate to support
and represent the individual so that they can be properly involved in the assessment
process. As paragraph 6.34 of the Statutory Guidance states:
“Where there is a family member or friend who is willing and able to facilitate the
person’s involvement effectively, and who is acceptable to the individual and judged
appropriate by the local authority, they may be asked to support the individual in the
assessment process. Where there is no one thought to be appropriate for this role –
either because there is no family member or friend willing and available, or if the
individual does not want them to be a part of the assessment – the local authority
must appoint an independent advocate.”
7.10 Identification of that advocate has certain restrictions as paragraphs 7.32 and 7.33 of
the Statutory Guidance makes clear:
“7.32. Local authorities must consider whether there is an appropriate individual (or
individuals) who can facilitate a person’s involvement in the assessment, planning or
review processes, and this includes three specific considerations.
7.33. First, it cannot be someone who is already providing the person with care or
treatment in a professional capacity or on a paid basis (regardless of who employs or
pays for them). That means it cannot be, for example, the person’s GP, nurse, key
worker or care and support worker.”
7.11 The intention has been to ally current independent advocacy services with those to be
found in the Mental Capacity Act 2005, and those acting at present under the latter
regime should in most instances be able to carry out such a role under CA 2014, albeit
CA 2014 provides a broader duty as described at paragraph 7.64 of the Statutory
Guidance.
7.12 Further, the individual’s wishes to be supported by any particular individual must be
respected and followed, assuming they have capacity or is competent to consent (if
not the local authority must, according to paragraph 7.34 of the Statutory Guidance,
“be satisfied that it is in the person’s best interests to be supported and represented
by the individual”).
7.13 If it appears that a child is involved in providing care, the local authority must consider
the impact of the individual’s needs on the child's well-being, welfare, education and
development; and identify whether any of the tasks, which the child is performing for
the individual, are inappropriate for the child to perform, having regard to all the
circumstances.xlvi
7.14 Where a local authority considers that any person would benefit from the provision of
information and advice relating to care and support for individuals or support for
carers, it must advise that person how to obtain such information and advice. xlvii
7.15 In that regard, building on requirements elsewhere in the CA 2014 to furnish
individuals with information and advice, the Statutory Guidance emphasises the
importance of facilitating an understanding of the assessment process:
“From their very first contact with the local authority, the person must be given as
much information as possible about the assessment process, as early as possible, to
ensure a personalised approach to the assessment.”xlviii
7.16 In many cases, it will also be necessary to seek the advice and assistance of experts,
who are involved or specialise in the condition or circumstances of the individual being
assessed. If the individual’s needs require it, the local authority will indeed be obliged
to consult an expert about the condition or circumstances of the individual, whether
before or during the assessment process.xlix
7.17 For example, paragraph 6.76 of the Statutory Guidance provides the following in
relation to integrated assessments:
“A local authority may carry out a needs or carer’s assessment jointly with another
body carrying out any other assessment…provided that person agrees…An integrated
approach may…include putting processes in place to ensure that the person is referred
for other assessments such as an assessment for after-care needs under the Mental
Health Act 1983.”
8.
Appeals
8.1
Section 72 of the CA 2014 provides for a new appeal process, which will come into
effect in April 2016. The section allows for regulations to establish a process by which
appeals may be made against local authorities’ decisions in respect of individuals
under Part 1 of CA 2014.
8.2
The appeal process is presently subject to consultation, which will run until 30 th March
2015. The Department of Health’s proposals, issued on 4 February 2015, provide that
social workers would review each other’s decisions and that retired social workers
could be appointed as independent reviewers of local authority decisions.
8.3
A local authority would not be bound to accept the judgment of such a reviewer. In
the event that the decision was adverse to the local authority, it would be able to ask
for the decision to be overturned or revised.
8.4
Not all decisions made under the CA 2014 would be subject to the section 72 appeal
process. Presently, however, the Government proposes that the format of a needs or
carer’s assessment under sections 9 and 10 of the CA 2014, including whether the
assessment is carried out face-to-face or on the telephone, would be covered.
8.5
Before the new process comes into effect, an individual will be able to complain to the
local authority about a decision made under Part I of the CA 2014, as he or she may do
presently under the Local Authority Social Services and NHS Complaints Regulations
2009.
9.
Moving to different areal
9.1
In the event that an individual genuinely intends to move to a different local authority
area, the authority for the area from which he or she intends to move (‘the first
authority’) should provide the other (‘second’) authority with a copy of the most
recent care and support plan, and any other reasonably requested information.
9.2
Proper interpretation of the CA 2014 and the Statutory Guidance, it is suggested,
requires that a person’s care and support should continue uninterrupted regardless of
any move to another local authority area. However, the nature and level of the care
and support that he or she requires will not necessarily remain the same and, as
paragraph 20.4 of the Statutory Guidance makes clear, the second authority should
complete a needs assessment before the move. If that does not happen, the existing
provision will continue until it does.
9.3
The political and legislative intent is, therefore, that the second authority is put on
notice of a duty to carry out its own assessment as soon as it is satisfied that the
individual genuinely intents to move to its area. This will allow the individual to know
in advance what care and support he or she can expect to receive in the new area. As
paragraph 20.30 of the Statutory Guidance states:
“The second authority should agree the adult’s care and support plan and carer’s
support plan, including any personal budget, in advance of the move to ensure that
arrangements are in place when the person moves into the new area…”
10.
Conclusion
10.1 The CA 2014 provides a new statutory framework for the assessment of needs,
intended to identify any level of need for care and support, so that local authorities
can consider how to provide a proportionate response, at the right time, based on the
individual’s needs.li
10.2 The new assessment duties in respect of carers is likely to result in an increase in local
authority obligations. Indeed, Government figures suggest that local authorities will
be required to carry out an additional 332,245 assessments and an additional 259,308
care reviews in 2016/17 as a result of the CA 2014’s reforms. A recent Department of
Health impact assessment has also predicted that the extra costs of these assessments,
reviews and care management will be £255.1m in 2016/17.
10.3 With that in mind, local authorities will receive extra funding in 2015/2016, to assist
with their care assessment duties. The government has provided £146m to enable
local authorities to plan and provide for the ‘care cost cap’ in 2015/2016; and £55.5m
will go into a new Carers and Care Act Implementation Grant, mostly to meet the
demand created by the reduced threshold for assessment and carers’ new right to
support. Further, in conjunction with the Social Care Institute for Excellence, the
Government is developing a range of tools to facilitate good practice.
10.4 In these circumstances, it is unsurprising that local authorities are now considering
how to improve their assessment capacity in a cost-effective manner and that options
presently under consideration include online assessments, third party assessments and
the establishment of specialist self-funder assessment teams.
10.5 Whatever options they ultimately choose, however, local authorities will need to
ensure, in the meantime, that they are prepared, administratively and otherwise, for a
brand new regime and its consequences.
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Statutory Guidance, paragraph 6.1
See sections 58 to 64
See generally, Statutory Guidance at paragraph 6.13
Statutory Guidance, paragraph 6.13
Statutory Guidance, paragraphs 23.4 and 23.5
Section 9(3)
Section 9(5)
Sections 9(4) and 1(2)
Sections 9(6), 2 and 4
Section 12(3)
See generally, Statutory Guidance at paragraph 6.16
Statutory Guidance, paragraph 6.16
Section 10(2)
Section 10(3)
Statutory Guidance, paragraph 61.8
Section 10(9) and (10)
Section 10(4)
Section 10(7)
Section 10(6)
See paragraph 2.7 above
Sections 10(8), 2 and 4
Section 12(4)
See generally Statutory Guidance at paragraph 6.44
Statutory Guidance, paragraph 6.30
Regulation 2 of SI 2014/2827
Statutory Guidance, paragraph 6.44
See Regulation 2(6) of SI 2014/2827
See generally, Statutory Guidance at paragraph 6.74
Statutory Guidance, paragraph 6.75
Section 12(5) and (6)
Section 12(7) and (11)
As to which, see section 12(5) and (6)
For example, R (on the application of S) v Wandsworth LBC [2001] EWHC Admin 709; and R (on the
application of M) v Hammersmith & Fulham LBC [2008] UKHL 14
Section 11(1) and (5)
Section 11(2)
Section 11(3) and (4)
Statutory Guidance, paragraph 6.29
Statutory Guidance, paragraph 6.85
Regulation 3 of SI 2014/2827
See for example paragraph 6.3 to 6.5 of the Statutory Guidance
Regulation 5 of SI 2014/2827
Regulation 6 of SI 2014/2827
Regulation 3 of SI 2014/2827
ibid.
Regulation 4 of SI 2014/2827
ibid.
ibid.
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Statutory Guidance, paragraph 6.22
Regulation 5 of SI 2014/2827.
See generally Statutory Guidance, Chapter 20
Statutory Guidance, paragraph 6.6
These materials are provided for educational purposes only. They do not constitute legal advice that
is endorsed by DH/LGA/ADASS, nor are they a statement of policy. Importantly, these notes have
been prepared before Parliament has indicated which provisions of the existing legislative framework
have been repealed and without the benefit of transitional provisions. Nothing herein is intended or
should be construed as legal advice. Should you require advice about the Care Act 2014 and its
implications, please contact Cornerstone Barristers on [email protected]