CARE ACT 2014: A PRACTICAL PERSPECTIVE
Presentation for Exeter Mencap
Holly Mieville-Hawkins
29 March 2017
All copyright © reserved to Holly Mieville-Hawkins
In the main, the Care Act 2014 (‘The Act’) came into force on 1 April 2015. It overhauls the whole arena regarding who is entitled to care and support from the Local Authority, how the Local Authority assesses care and support needs, and also how they are funded. The act itself is fairly bare bones, but it is supported and fleshed out by a whole host of regulations and statutory instruments, including the Care and Support Statutory Guidance (CSSG) 2014
(https://www.gov.uk/government/publications/care-act-statutory-guidance/care-and-support-statutory-guidance), the Care and Support (Charging and Assessment of Resources) Regulations 2014, and The Care and Support (Eligibility Criteria) Regulations 2015. This is convenient for the government, as it means it will be easier for it to change the interpretation of the Care Act 2014 as and when it needs to. However, what is useful is that many of the provisions of the Act are very easy to read and understand, and it is this supporting guidance and regulations where you will find the important information that you need to argue for increased support from the Local Authority.
One very important thing to note is that the so called ‘Dilnot reforms’ which were to impose the cap on the cost of care, possibly to £75,000 during a person’s lifetime, were not enacted. The reforms have now been kicked into the long grass until at least 2020, but I expect that they will re-emerge again at around election time.
Whilst what I discuss below refers specifically to adults, the provisions are similar for children, and are set out in ss.58-66 Care Act 2014. I will not go into them in detail in this presentation, due to lack of time!
Wellbeing principle
The Care Act 2014 operates under one overriding principle: Promoting well being. This is known as the ‘Well being principle’. It places a general duty on Local Authorities to promote a person’s well being when providing support, with a particular emphasis on ensuring people have choice and control. It is, however, worth noting that as this is a general duty not a specific duty, it is not enforceable as an individual right.
S.1 Promoting individual well-being
(1) The general duty of a local authority, in exercising a function under this Part in the case of an individual, is to promote that individual's well-being.
(2) “Well-being”, in relation to an individual, means that individual's well-being so far as relating to any of the following:
(a) personal dignity (including treatment of the individual with respect);
(b) physical and mental health and emotional well-being;
(c) protection from abuse and neglect;
(d) control by the individual over day-to-day life (including over care and support, or support, provided to the individual and the way in which it is provided);
(e) participation in work, education, training or recreation;
(f) social and economic well-being;
(g) domestic, family and personal relationships;
(h) suitability of living accommodation; and
(i) the individual's contribution to society.
(3) In exercising a function under this Part in the case of an individual, a local authority must have regard to the following matters in particular:
(a) the importance of beginning with the assumption that the individual is best-placed to judge the individual's well-being;
(b) the individual's views, wishes, feelings and beliefs;
(c) the importance of preventing or delaying the development of needs for care and support or needs for support and the importance of reducing needs of either kind that already exist;
(d) the need to ensure that decisions about the individual are made having regard to all the individual's circumstances (and are not based only on the individual's age or appearance or any condition of the individual's or aspect of the individual's behaviour which might lead others to make unjustified assumptions about the individual's well-being);
(e) the importance of the individual participating as fully as possible in decisions relating to the exercise of the function concerned and being provided with the information and support necessary to enable the individual to participate;
(f) the importance of achieving a balance between the individual's wellbeing and that of any friends or relatives who are involved in caring for the individual;
(g) the need to protect people from abuse and neglect; and
(h) the need to ensure that any restriction on the individual's rights or freedom of action that is involved in the exercise of the function is kept to the minimum necessary for achieving the purpose for which the function is being exercised.
The Local Authority must consider the outcomes that each person has for themselves as part of their every day life (s.9(4)(b) Care Act 2014), and if the person has needs for care and support, and the Local Authority have a duty to act, those outcomes must be considered in determining how the provision of support will be made.
A common myth amongst Local Authorities is that therapies, activities and more creative forms of support cannot be accessed under the Care Act. This is not the case. The Local Authority must consider the wellbeing principle at all times – if it can be argued that a person's wellbeing requires such activity or therapy, and the eligibility criteria are met, then it must be provided. The CSSG 2014 states at paragraph '1.1 The core purpose of adult care and support is to help people to achieve the outcomes that matter to them in their life.'. At paragraph 1.2 it states 'Local authorities must promote wellbeing when carrying out any of their care and support functions in respect of a person ... it is a guiding principle that puts wellbeing at the heart of care and support.' It goes on to say at 1.7 'Promoting wellbeing involves actively seeking improvements in the aspects of wellbeing.'.
Statutory guidance must be followed by Local Authorities unless they can establish that there is a real reason to act contrary to it.
Taking preventative measures regarding care
S.2 places a new duty on local authorities to take a more forward thinking approach when it comes to the provision of care and facilities. It places a duty on Local Authorities to prevent or delay the development of, or reduce the needs for care and support of, adults in their area. This may be very useful in itself where you can see that the Local Authority is taking a short sighted approach, or where the individual you are assisting does not yet meet the eligibility criteria to receive assistance under the Care Act 2014.
S.2 Preventing needs for care and support
(1) A local authority must provide or arrange for the provision of services, facilities or resources, or take other steps, which it considers will:
(a) contribute towards preventing or delaying the development by adults in its area of needs for care and support;
(b) contribute towards preventing or delaying the development by carers in its area of needs for support;
(c) reduce the needs for care and support of adults in its area; and
(d) reduce the needs for support of carers in its area.
(2) In performing that duty, a local authority must have regard to:
(a) the importance of identifying services, facilities and resources already available in the authority's area and the extent to which the authority could involve or make use of them in performing that duty;
(b) the importance of identifying adults in the authority's area with needs for care and support which are not being met (by the authority or otherwise); and
(c) the importance of identifying carers in the authority's area with needs for support which are not being met (by the authority or otherwise).
The Act recognises that family carers have a significant role to play in providing care, and ultimately, saving the government significant amounts of money. Specifically, s.4 states that information about care and support must be made available to both those that need care, and carers. s.10 states that 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:
(a) whether the carer does have needs for support (or is likely to do so in the future), and
(b) if the carer does, what those needs are (or are likely to be in the future)’
The rationale behind this is that where a need is being met by a carer, the Local Authority then in turn does not need to meet that need, nor does it therefore have a duty to do so. When considering whether the carer has needs, the Local Authority must consider the carer’s individual circumstances, including whether they work or wish to work. If it is considered that a carer may have needs, then the Local Authority must carry out an assessment. Where a carer wishes to cease providing care, then this will trigger a change in the circumstances of the person receiving care, and a new assessment of their needs will need to be carried out.
Triggering duty to assess care needs
S.9 sets out the Local Authority’s duty to assess care needs. It states that where:
‘it appears to a Local Authority that an adult may have needs for care and support, the authority must assess:
(a) whether the adult does have a need for care and support; and
(b) if the adult does, what those needs are.’
The assessment must look at all the wellbeing criteria set out in s.1, and focus on the outcome that the individual wants to achieve in every day life. Additionally, much like when making a best interests decision under s.4 MCA 2005, persons involved with the care of the adult must be consulted about their needs. Ultimately, the Local Authority has discretion about what services they provide to comply with their duties to meet the needs identified.
It is well worth noting that an adult can refuse to agree to an assessment (s.11 CA 2014). However, if the adult lacks capacity to refuse or consent to an assessment, and the Local Authority is of the view that the adult is experiencing or is at risk of abuse or neglect, the Local Authority must carry out a needs assessment in any event (s.11(2) CA 2014). How they are meant to do this if the adult is refusing to allow them to make the assessment, is another question!
It is worth stressing that when presenting a person's needs for care and support, the focus must be on a person's needs, not their preferences. It is crucial to ensure that all language used is a derivative of 'need' not 'want' or 'would like', otherwise, if it is simply a preference, the Local Authority can discount even considering whether it has a duty to meet that need.
Triggering the duty to meet needs
Whilst the wellbeing principle combined with a duty to assess may sound all encompassing, I assure you it is not. There are three further hurdles that must be overcome before the Local Authority will meet the needs of an adult (s.18 CA 2014):
1. The adult is ordinarily resident in the Local Authority.
2. The minimum eligibility criteria must be met (S.13).
3. The financial resources of the adult are below the threshold set by the Local Authority.
The first of these is relatively straight forward. In summary, S.39 CA 2014, together with its supporting regulations states that a person is ordinarily resident in an area if they lived there before they went into a funded residential placement or NHS accommodation. I will not dwell on this further, as the act is quite clear about this. I will address the second and third requirements below.
Minimum eligibility criteria
Whilst the Local Authority has a duty to assess the needs of any adult or carer that appears to have any needs, they are only under a duty to meet the needs of the person, if the person falls within the minimum eligibility criteria (S.13 Care Act 2014). This is where the Care Act 2014 bites. The Local Authority is not under a duty to meet any needs that fall outside of this criteria. However, it is good to note that it is under a duty to confirm in writing to an adult the outcome of any needs assessment, and the steps it is going to take to prevent needs arising, if the adult is found not to be meeting the eligibility criteria, ie the need is present, but not sufficiently bad to require the local authority to meet it currently.
The minimum eligibility criteria threshold is fleshed out in the Care and Support (Eligibility) Regulations 2015. To qualify as having a need that the Local Authority are under a duty to meet, the adult must be unable to achieve two of the following outcomes. Additionally, as a consequence of two of the outcomes applying, there must be or there is likely to be a significant impact on the adult’s wellbeing. The two outcomes are (Reg. 2(1)):
(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.
It is worth noting that a simply need for accommodation without any other needs is not a 'need for care and support', even if that person is disabled (R. (on the application of GS) v Camden LBC [2016] EWHC 1762 (Admin)).
For the purposes of the above, 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.
The regulation states at Reg. 2(4) that ‘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 intention of parliament in creating the eligibility criteria was to ensure that there was a national minimum standard that all Local Authorities worked to. However, it is open to a Local Authority to apply a lower threshold if they want to.
It remains to be seen how the phrase ‘significant impact’ will be interpreted. The CSSG 2014 states at paragraphs 6.110 and 6.111 that the "Local authority will have consider whether the adult's needs and their consequent inability to achieve the relevant outcome will have an important consequential effect on their daily lives, their independence and their wellbeing. In making this judgment, local authorities should look to understand the adult's needs in the context of what is important to him or her. Needs may affect different people differently, because of what is important to the individual's wellbeing may not be the same in all cases. Circumstances which create a significant impact on the wellbeing of one individual may not have the same effect on another." It could be that there is a clear, single effect that has a significant impact, or a cumulative effect of lots of areas having a small impact, or a domino effect, whereby one or two small impacts, lead to a significant impact ie spending a significant period of time getting dressed, making breakfast and showering, leads to a significant impact on your ability to access the community.
However, in spite of this, in light of the recent flurry of decisions, including R (McDonald) v Royal Borough of Kensington and Chelsea 2011 UKSC, that permit a Local Authority to take the allocation of scarce resources into account, it is likely that it will be open to a strict interpretation, thereby lifting many people outside of the remit of the Care Act.
Devon County Council's policies and procedures, including how a person can be eligible for care and support under the Care Act 2014, regarding the implementation of the Care Act 2014 can be found here: https://new.devon.gov.uk/adultsocialcareandhealth/policies-and-procedures/
There seemed very little point in annexing their 'Eligibility Policy' to this presentation, as it simply reiterates the above, which seems sensible as the criteria are national minimum standards. The below case may be more useful in terms of considering how the Care Act 2014 assessments are in fact applied in reality.
Financial eligibility
As stated above, the Dilnot reforms have been shelved, for now at least. Therefore, broadly, unless an adult (or indeed a child) has capital assets valued at less than the limit of £23,250, the Local Authority will charge for any services it provides (Regulation 12, below). As before, if a person has between the ‘lower’ limit of £14,250 and the ‘higher’ limit of £23,250, they will contribute on a sliding scale towards the cost of their care. However, what has changed is that both residential and non residential services now follow the same guidance and have the same legislation underpinning the right to charge. It is always worth keeping these limits in mind, particularly when the older generation is estate planning, as a well meaning inheritance can have undesired and unexpected consequences. It is necessary to seek specialist estate planning advice when the beneficiary of any will or gift is disabled, and either is or may be in the future, reliant on state support.
For each adult that meets the minimum eligibility criteria, and each carer (where appropriate) the Local Authority is under a duty to carry out an assessment of financial resources (s.17 CA 2014). This is carried out much as before. The assessment is underpinned by The Care and Support (Charging and Assessment of Resources) Regulations 2014, together with the Care and Support Statutory Guidance. They detail how assessments of income and capital will be made, and the rhetoric is very similar to the old and well worn CRAG and Fair Charging Guidance. Again, an adult can refuse a financial assessment.
For our purposes, I have summarised the key elements below:
(a) The personal expense allowance for those in residential care is now £24.40 per week (Reg 6).
(b) The minimum income required for those not living in residential care varies depending on their personal circumstances, as previously (Reg 7).
(c) Where an aid, or a minor adaptation to property for the purpose of assisting with nursing at home or aiding daily living will cost £1,000 or less, it remains non means tested (Reg 3).
(d) Intermediate care and reablement support services for the first 6 weeks, which have a purpose of the provision of assistance to an adult to enable the adult to maintain or regain the ability needed to live independently in their own home is non means tested (Reg 3). This is in line with the Local Authority’s duty to take measures to prevent a client from starting to have eligible needs.
(e) All earnings remain disregarded income (Reg 14).
(f) Income. Whilst the capital limits are important, one thing to keep in mind at all times is that nearly all income will be taken into account. There is a list of disregarded income, which includes earnings. The effect of this means that regardless of your client’s capital circumstances, the local authority will be able to take the value of any income they receive, with the exception of the DLA or PIP mobility element, and use this to offset the amount that the Local Authority must pay towards that person’s care. Reasonable deductions can be made from any income that can be taken into account, such as household bills, if a person receives DLA or AA, the cost of any disability related expenditure such as additional travel costs or aids and the cost of maintaining another person. Further, the concept of a tariff income remains in place. This means that for every £250 of capital asset that your client has over £14,250, the Local Authority will pretend that he has £1 of income (Reg 25). Therefore, contrary to popular belief, it is often the amount of income that a person has that will mean that they will ultimately pay a significant amount towards their care, rather than the amount of their capital.
(g) There is a list of disregarded income. Importantly, any income received as a result of a Personal Injury payment, such as PI trust distributions, interest from investments or PPOs will be disregarded income if they are within a PI Trust or held within a Deputyship (Schedule 1, paragraph 15), unless specifically earmarked for care. This is supported by the Guidance to the Care Act:
(https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/315993/Care-Act-Guidance.pdf), which at Annex C at paragraph 37(c) confirms that income from personal injury awards is disregarded. Practice point – split care/case management.
(h) The long list of disregarded assets remains and is detailed at Schedule 2 of the Regulations. I will summarise the key ones here:
a) The value of the person’s main or only home:
i. if they are a temporary resident in residential care;
ii. if they are residing in it;
iii. if they are a permanent resident in residential care, for the first 12 weeks beginning on the day that they move into the residential home, whether it be as a permanent or temporary resident; and
iv. If they are a permanent resident, where the home is occupied by a relative or partner that is over 60, or a child under 18, or an incapacitated person. The person must have been living with the person requiring care at the time that they move into care.
b) Arears of certain benefits.
c) Personal possessions, except those personal possessions purchased with a view to avoiding paying towards care.
d) Capital derived from a personal injury award and placed in a personal injury trust, or held by a Deputy, with the exception of funds specifically identified by the Court to deal with the cost of providing care.
e) The value of any premises occupied by a third party where the Local Authority considers it would be reasonable to disregard the value of the premises.
The regulations do not provide much assistance about how a house is to be valued, other than stating that it will be the market value at arms length. Whether a co-occupant reduces the value to essentially nil, is yet to be tested but the case law supports this suggestion: A complaint against Lincolnshire County Council (Complaint 03/C/09384, 28 June 2004).
It is worth noting that if a person’s assets are such that you are considered a self funder, that a self funder can request a full needs assessment and Care and Support Plan (see below), and can also ask the Local Authority to put arrangements in place for them. The Local Authority can charge for putting these arrangements in place and managing them (s.14(1)(b) and Reg 5).
Notional capital
It is worth stressing that The Care and Support (Charging and Assessment of Resources) Regulations 2014 at Reg 22 that where an adult has relieved themselves of an asset with a view to avoiding contributing towards their care that:
S.22.—(1) The adult is to be treated as possessing capital of which the adult has deprived themselves for the purpose of decreasing the amount that they may be liable to pay towards the cost of meeting their needs for care and support.
The Local Authority can, and will, in fact pursue the recipient of said asset for payment. There is no time limit on their investigatory powers (S.70 Care Act 2014), and they will pursue the recipient of the transferred asset for the outstanding funds, up to the transferred value. The same principle applies for depriving yourself of income.
Importantly, the establishing of a Personal Injury Trust or placing Personal Injury funds under the control of the Court of Protection does not count as a deprivation of income or capital (Reg 22).
NHS funded care
It is worth noting that none of the above affects a person’s entitlement to s.117 MHA 1983 aftercare where they have previously been section for treatment under s.3 MHA. Equally, it does not affect a person’s entitlement to Continuing Healthcare Funding, where it is deemed that they have a primarily healthcare need. Neither of these are means assessed and both merit their own presentations.
The outcome – A Care and Support Plan
If a person meets the criteria as set out above, the Local Authority will produce a Care and support plan for the adult’s needs. The Care Act 2014 is clear and detailed about what this constitutes and who should be involved in creating it.
S.25 Care and support plan, support plan
(1) A care and support plan or, in the case of a carer, a support plan is a document prepared by a local authority which:
(a) specifies the needs identified by the needs assessment or carer’s assessment;
(b) specifies whether, and if so to what extent, the needs meet the eligibility criteria;
(c) specifies the needs that the local authority is going to meet and how it is going to meet them;
(d) specifies to which of the matters referred to in section 9(4) the provision of care and support could be relevant or to which of the matters referred to in section 10(5) and (6) the provision of support could be relevant;
(e) includes the personal budget for the adult concerned (see section 26; and
(f) includes advice and information about:
(i) what can be done to meet or reduce the needs in question; and
(ii) what can be done to prevent or delay the development of needs for care and support or of needs for support in the future.
(2) Where some or all of the needs are to be met by making direct payments, the plan must also specify:
(a) the needs which are to be so met; and
(b) the amount and frequency of the direct payments.
(3) In preparing a care and support plan, the local authority must involve:
(a) the adult for whom it is being prepared;
(b) any carer that the adult has; and
(c) any person whom the adult asks the authority to involve or, where the adult lacks capacity to ask the authority to do that, any person who appears to the authority to be interested in the adult’s welfare.
(4) In preparing a support plan, the local authority must involve:
(a) the carer for whom it is being prepared;
(b) the adult needing care, if the carer asks the authority to do so; and
(c) any other person whom the carer asks the authority to involve.
(5) In performing the duty under subsection (3)(a) or (4)(a), the local authority must take all reasonable steps to reach agreement with the adult or carer for whom the plan is being prepared about how the authority should meet the needs in question.
Challenging a Care and Support Plan
Therefore, if you wish to challenge a s.9 Care Needs Assessment or s.24 Care and Support Plan, which sets out a person's needs and unmet needs, the interpretation of eligibility under the eligibility criteria, and the manner in which it is proposed that the Local Authority will meet an eligible unmet need, I suggest the following as a starting point:
* Consider if the s.9 assessment is accurate and covers all of the needs of a person? This will be the crux of any provision of care, so all elements of a person's needs, no matter how small or seemingly insignificant, should be evidenced in this assessment. Ensure it is properly and comprehensively completed by a suitably qualified person. It is often the case that a social worker alone cannot complete it, and they may need to seek assistance from a physiotherapist or OT to ensure that they have captured the full picture. Challenge it directly if it is not. A failure to challenge will be deemed as acceptance of the assessment.
* Always, in all correspondence, whether email, letter or verbal, speak in the language of need.
* Obtain clear evidence, ideally in the form of medical and therapy records, daily care or personal diaries and care notes, to evidence a need if required. Often family members or carers are best placed to identify care needs.
* Obtain clear evidence by way of transcriptions of conversations, evidence from you, and third party evidence from those around the service user, of their views on the amount of care that they need, how it should best be provided, their wellbeing priorities, and also what outcomes they wish to seek in terms of their care.
* Obtain copies of all documents referred to in the assessment. All documents replied on should be disclosed to the service user or a family member on their behalf, and can be challenged if they are inaccurate.
* Refer the social worker to the guidance laid down by the 'Social Care Institute for Excellence' (SCIE) on how to carry out assessments. It is very clear, very thorough, and very fair: http://www.scie.org.uk/care-act-2014/assessment-and-eligibility/eligibility/eligibility-determination.asp. It should be compulsory reading for all social workers.
* Do not be afraid to request a re-assessment if you can evidence that the initial assessment was not comprehensive, or needs have changed since the assessment. Where finances allowed, independent assessments by social workers, OTs, physiotherapists etc can be very useful and persuasive.
* Ensure that you are party to any best interests decision that is made on behalf of the service user. Where the service user lacks capacity to make decisions about their own care, then all decisions about their care must be made in their best interests, unless a deputy or attorney is appointed to deal with that decision. The duty to act in a person's best interests a wide ranging duty, and requires a clear consideration of the views of the service user's family, attorney, deputy and care givers. Therefore, if you are of the view, with evidence, that it is in the service user's best interests to have social engagement and exercise in the form of horse riding twice a month, and the Care Plan does not identify the need, and/ or provide for horse riding as a way of meeting an unmet need, then you can challenge whether it is in the service user's best interests that horse riding be provided. This is what the service user would be doing if he or she had the capacity to do so. It is easier to be part of a decision than have to undo it once it is made.
* Do not be afraid to go above the head of the social worker you have been allocated if you consider that they are not fulfilling their duties.
Davey v Oxfordshire County Council
On 27 February 2017, a very important case regarding how the Local Authority should be interpreting all of the above was published. It highlighted a very concerning trend within Local Authorities to try and cut the care and support given to a person, by relying on the duty to promote independence in S.1(3) Care Act 2014. In the case of Davey v Oxfordshire CC 2017 EWHC 354 Admin, which approved the Local Authority's decision to cut a man's support package from a weekly sum of £1651 per week, to £950 per week, on the grounds that it would enable his independence. This cut was justified by firstly reducing the amount of time that Mr Davey had support from personal assistants, and also cutting the amount allowed to him for paying their hourly rate, and other amendments to their terms and conditions.
The claimant in the case, Mr Davey, aged 40, is, and has been since shortly after birth, a severely disabled adult with significant needs for care and support. He has quadriplegic cerebral palsy, contractures of hips and knees, hip dislocation, very little trunk control, stretched bowel and hypersensitivity to touch. He is not able to bear weight or mobilise and is therefore dependent on a wheelchair. He has severe visual impairment and is registered blind, although he has some, low vision, sight. He requires assistance with all of his intimate personal care needs (including personal hygiene and toileting, all domiciliary tasks and activities of daily living, including accessing the community). As regards his psychological health, he has in the past been recorded as having depression, persistent low mood and anxiety. The Local Authority, from its own observations, assessed his needs as being "non-complex" and manageable. Mr Davey lives alone in a specially adapted bungalow, with a stable care team of 7, who were funded by the independent living fund. Before the review, he had care for 24 hours a day, except for 2 hours once a week, on a Tuesday afternoon during which time he was alone.
The Mr Davey receives strong support from his family, led very much by his mother Jasmine Davey, who is now aged 75. She has recently received further treatment for skin cancer. His sister Rachel, his sister in law, Sue Davey and his father, Tony Davey are also active as carers. Mr Davey leads an active and engaged life. All carers except his mother are paid.
As well as considering the wellbeing principle and Mr Davey's eligible needs for care and support, the Court also considered Article 19 of the United Nations Convention on the Rights of Persons with Disabilities, which addresses the right of living independently and being included in the community. It states: 'Parties to this Convention recognize the equal right of all person with disabilities to live in the community, with choices equal to others, and shall take effective and appropriate measures to facilitate full enjoyment by persons with disabilities of this right and their full inclusion and participation in the community, including by ensuring that:
a) persons with disabilities have the opportunity to choose their place of residence and where and with whom they live on an equal basis with others and are not obliged to live in a particular living arrangement;
b) persons with disabilities have access to a range of in-home, residential and other community support services, including personal assistance necessary to support living and inclusion in the community, and to prevent isolation or segregation from the community; and
c) community services and facilities for the general population are available on an equal basis to persons with disabilities."
This is not the place to conduct a forensic analysis of each reason why the reduction in Mr Davey's care to 18 hours a day from 24 hours a day, at reduced rates, was approved. However, it is important to note that the following factors were important:
i) part of the previous provision of 24 hour care was due to Mr Davey not wishing to spend more than 2 hours a day on his own out of concerns for his own safety. With the appropriate assistive technology, it was deemed for him to be safe to do so. This was therefore not a need;
ii) one of the reasons that Mr Davey did not wish to spend more than 2 hours a day alone due, in part, to anxiety, leading to real emotional and psychological wellbeing concerns. This was addressed by a mental health assessment, which concluded that his mental health had been stable, and the Local Authority agreed to taper the reduction in his care over a 6 month period so he could adjust, and keep this issue, and the issue of Mr Davey's safety when he was not attended, under review;
iii) a very important factor was the duty of the Local Authority to promote independence, and thereby reduce the amount of time that Mr Davey was assisted;
iv) a large part of the reduction in the budget provided for Mr Davey was a very significant reduction in the hourly and sleeping night rates provided to the care team. This is a very important part of running a care package, and the line taken in Davey is very hard-line, as the Local Authority are suggesting rates at well below what their own papers state is the appropriate wage level for a carer in Oxfordshire; and
v) as Mr Davey is continent, despite the fact that he requires assistance for all elements of his toileting needs, a period of 2 hours alone is not a risk to his dignity.
In conclusion, it would seem that whilst the Court take the issue of wellbeing very seriously, and embrace it's broader considerations, including accessing social activities and emotional wellbeing, they are going to take a very hard line on the definition of 'need' over preference or wishes. They also seem to, in this case at least, err on the side of the Local Authority when determining whether a particular unmet need has been met.
N (Appellant v ACCG and others (Respondents) [2017] UKSC 22
Since this presentation was first drafted, the above matter has been decided in the Supreme Court. In summary, the case has confirmed that the Court of Protection do not have the power to Order a Local Authority or a private care provider to make provision or deliver training that they are not prepared to deliver. The court can only choose between the options available to it.
A full copy of the 2 page press summary is annexed to these notes, and can also be found here (https://www.supremecourt.uk/cases/docs/uksc-2015-0238-press-summary.pdf). It is compulsory reading for anybody wanting to challenge a care decision by the Local Authority.
Implementing support – The personal Budget
In all cases, the Local Authority must prepare a personal budget. This is set out in S.26 Care Act 2014. The Act is very clear about how this works.
S.26 Personal budget
(1) A personal budget for an adult is a statement which specifies:
(a) the cost to the local authority of meeting those of the adult’s needs which it is required or decides to meet as mentioned in section 24(1);
(b) the amount which, on the basis of the financial assessment, the adult must pay towards that cost, and
(c) if on that basis the local authority must itself pay towards that cost, the amount which it must pay.
This is to encourage transparency, and to encourage a person to take control of the budget allocated to them, by the use of Direct Payments, which I will address later.
Top up payments
In contrast to the previous legislation on this issue, a person can now pay their own top ups for care if the person wishes to live in more expensive accommodation than that the Local Authority is prepared to pay for. The person can only make these payments themselves if they are within the 12 week property disregard period (above) or their property is subject to a deferred payment agreement.
The detail of this is set out in Annex A to the Care and Support Statutory Guidance. Put simply, the Local Authority must offer at least one option for accommodation that meets the needs of the individual. However, that accommodation does not have to be within the geographical boundaries of the Local Authority. If the person in need or care, or their representative, wishes to have accommodation that is more expensive than that the Local Authority considers would meet their needs, the adult, or a third party, can top up the personal budget that the Local Authority is prepared to offer. The top up payment should be made directly to the Local Authority, and if it ceases, the Local Authority will have to re-assess the provision of said accommodation.
Personal healthcare budgets
A personal budget should not be confused with a personal healthcare budget, which is only available to people who are considered to have healthcare, rather than social care, needs, that aren’t being met by direct provision from the NHS. For example, if a person is entitled to NHS Continuing Healthcare, and they are living at home rather than in a nursing setting, they could ask to have all of the money that would be used to fund nurses and other healthcare professionals such as OTs, physios etc to attend to them, in the form of a personal healthcare budget. They would be able to manage that budget directly and employ private staff to fulfil the functions that the NHS would otherwise meet. As a rule of thumb, it would be very difficult to get a personal healthcare budget if you weren’t in principle entitled to CHC. If you reside in a nursing home and aren’t entitled to CHC, the NHS Funded Nursing Care, which is £112 per week, is deemed to cover it. Personal Healthcare Budgets aren’t covered in the Care Act 2014, as they are dealt with by the NHS. The NHS website has more information about it: http://www.nhs.uk/choiceintheNHS/Yourchoices/personal-health-budgets/Pages/about-personal-health-budgets.aspx
Direct payments
The Local Authority may meet the recognised needs of a person in any way it sees fit. Examples are given at S.8(2) Care Act 2014, which states:
S.8 (2) The following are examples of the ways in which a local authority may meet needs under sections 18 to 20:
(a) by arranging for a person other than it to provide a service;
(b) by itself providing a service; and
(c) by making direct payments.
The first two options are fairly self-explanatory, and can include reliance on a family member to provide care. However, an equally valid way for the Local Authority to meet the care needs of individuals that qualify for a personal budget, is to do it by the provision of Direct Payments (s.24(1) Care Act 2014). The same eligibility criteria apply (as above). The secondary legislation underpinning the operation of Direct Payment is The Care and Support (Direct Payments) Regulations 2014.
The aim of Direct Payments is to improve choice, freedom and flexibility for the service user. In reality, it has lead to a shrinkage in the role of the Local Authority, and can create a whole plethora of problems such as sourcing appropriate care, negotiating contracts, acting as an employer and dealing with contingency plans in case arrangements break down.
The drive towards Direct Payments must come from the individual needing care, or their advocate or representative, if they lack capacity (ss.31 and 32 Care Act 2014). Where a person lack mental capacity to make the request for Direct Payments, or manage the funds themselves, the Local Authority may accept a request from, and make payments to, a person that they consider to be a suitable person. If a person that qualifies for Direct Payments does not wish to manage them, they can nominate someone else to do this for them. The Local Authority will always ask for receipts for all payments made to them, demonstrating exactly what each payment has been used for. Direct Payments cannot be used to employ family members, except in exceptional circumstances.
The Local Authority is under a duty, as set out in paragraph 12.8 Care and Support Statutory Guidance to give information regarding:
* what direct payments are;
* how to request one including the use of nominated and authorised persons95 to manage the payment;
* explanation of the direct payment agreement;
* the responsibilities involved in managing a direct payment and being an employer;
* making arrangements with social care providers;
* signposting to local organisations (such as user-led organisations and micro-enterprises)and the local authority’s own internal support, who offer support to direct payment holders, and information on local providers; and
* case studies and evidence on how direct payments can be used locally to innovatively meet needs.
It is worth knowing that Direct Payments should cover the whole cost of providing the service that the Local Authority is not providing. This includes the cost of recruiting carers, employer’s liability insurance, dealing with payroll and respite care. Up to four consecutive weeks respite care can be funded in any 12 month period (Reg 7).
It is intended that Direct Payments will extend to cover residential accommodation in 2016, to give greater choice and control. However, how this will work in practice is yet to be seen.
Safeguarding
The Local Authority’s duties under the Care Act to investigate and take steps to prevent any abuse are broad.
S.42 Enquiry by local authority
(1) This section applies where a local authority has reasonable cause to suspect that an adult in its area (whether or not ordinarily resident there):
(a) has needs for care and support (whether or not the authority is meeting any of those needs),
(b) is experiencing, or is at risk of, abuse or neglect, and
(c) as a result of those needs is unable to protect himself or herself against the abuse or neglect or the risk of it.
(2) The local authority must make (or cause to be made) whatever enquiries it thinks necessary to enable it to decide whether any action should be taken in the adult's case (whether under this Part or otherwise) and, if so, what and by whom.
(3) “Abuse” includes financial abuse; and for that purpose “financial abuse” includes:
(a) having money or other property stolen,
(b) being defrauded,
(c) being put under pressure in relation to money or other property, and
(d) having money or other property misused.
Each Local Authority must now have a ‘Safeguarding Adults’ board to discuss cases where there is a concern about abuse. Further, where an adult has died and there were any concerns about abuse or neglect, and investigation must be carried out, and written records made of the findings (s.44). Anybody asked to supply information to a Safeguarding Adults Board must, with few exceptions, supply said information.
However, excellent as the above seems, the Care Act 2014 removes a Local Authority’s power to enter into the home of a person suspected of being abused or neglected and moving them to a place of safety.
Conclusion
Whilst it has not made the wholesale changes to how the provision of care operates on the ground that was intended by it's being brought into force, the Care Act 2014 has streamlined and made more accessible the process of assessing and providing care. It has, in theory at least, put the focus of all provision of care onto the person in need of said care, and widened the definition of care to encompass the social, emotional and wider elements of wellbeing, and also recognise the role that carers play in our society. If the Local Authorities are able to comply with its requirements, it will be a piece of legislation that puts the person at the heart of it.
Holly Mieville-Hawkins
Senior Associate
Foot Anstey LLP
holly.mieville-hawkins@footanstey.com
0117 915 4651
@legal_capacity
29 March 2017
ANNEX 1
What is mental capacity?Legal background
One of the five principles of the Mental Capacity Act 2005 (MCA 2005) is that a person must be 'assumed to have capacity' to make a decision (S.1(2)) MCA 2005). The burden of proof is on the person trying to establish that a person lacks capacity, to establish it. A lack of capacity should never be assumed as a result of a prior finding of lack of capacity, or due to a person's appearance, behaviour or medical condition (s.2(3) MCA 2005).
A further principle is that 'A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.' (S.1(3) MCA 2005). This means that it may be necessary to ensure that a translator is present to facilitate understanding, or that a family member or friend is present to make the person in question feel at ease.
It is also important to realise that 'A person is not to be treated as unable to make a decision merely because he makes an unwise decision' (S.1(4) MCA 2005).
The inevitable outcome from the operation of the above principles is that mental capacity is time and decision specific. Mental capacity is a spectrum. It is often not a case of a person having full capacity to make all decisions at all times, or fully lacking capacity. Time specific means that a person may have mental capacity to make a particular decision first thing in the morning, when they are at their brightest, but lack such capacity later in the afternoon, when they are tired. In that case, a person must be supported to make decisions first thing in the morning, when they are at their brightest. Decision specific means that a person may have capacity to make the decision to give their niece £10 for her birthday or to buy a newspaper, but lack capacity to consider the long term investment of a multi-million pound damages claim.
The test
'A person (P) lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.' (S.2(1)) MCA 2005.
A person is regarded as being unable to make a decision if they cannot (s.3 MCA 2005):
* Understand information about the decision to be made;
* Retain that information;
* Use or weigh the information as part of the decision-making process; or
* Communicate the decision (by any means)
S.3(4) MCA 2005 confirms that 'the information relevant to a decision includes[understanding] information about the reasonably foreseeable consequences of:
(a) deciding one way or another, or
(b) failing to make the decision.'
Again, if a person would have been able to make the decision should the correct support have been given to him, ie braille or support from a family member, then the person is not to be treated as unable to make the decision in hand.
As this is a time and decision specific test, it should be considered whether they may have capacity to make decisions about the question in hand at a later time if they do not have the requisite capacity at the present time.
The question must be answered using the 'balance of probabilities' criteria, which means that the person assessing the capacity must be over 50% sure that the person lacks capacity in relation to this particular question if they are to conclude this as such.
Only if a person lacks capacity in relation to a particular decision, can a Best Interests decision be made for them in relation to that decision.
What is the difference between Lasting Powers of Attorney, Deputyship and Personal Injury Trusts?
The key thing to consider is mental capacity. It is only if a person has the requisite mental capacity to make a Lasting Power of Attorney (LPA) or declare a personal injury trust (PI Trust, also known as Compensation Protection Trusts), can they do this. If they lack such capacity, then it will not be possible to make an LPA or declare a trust, and it is likely that a Deputy will be needed.
Lasting Power of Attorney
Lasting Powers of Attorney (LPAs) came into creation on 1 October 2007. They replaced Enduring Powers of Attorney (EPAs). EPAs that were made before this date are still valid, however, no more can be made. If a donor of an LPA lacks mental capacity to make decisions for themselves, then the EPA must be registered with the Office of the Public Guardian (OPG) for it to be valid. The OPG is the government body that is responsible for monitoring the actions of attorneys and deputies.
An LPA is a document that enables a person (the donor) to make arrangements to allow another person or persons (attorney) to make decisions for them. There are two types of LPA:
i) Property and financial affairs; and
ii) Health and Welfare
A property and affairs LPA will allow the attorney to take control of and manage decisions about a person's house, pension, bank accounts, benefits etc. A health and welfare LPA will allow the attorney to make decisions about the donor's wellbeing including their medical treatment, where they should live, and sometimes, life sustaining treatment.
A donor can appoint as many attorneys as he likes, and can also appoint a particular attorney or attorney(s) to act first, with other people to act as replacements if the originals can no longer act or do not wish to. However, it would be sensible to limit the appointment to a practical number, and only appoint those that are likely to get on together. Appointments can be made jointly (ie all attorneys must act together in all things) or jointly and severally (ie attorneys can each act alone and can also act together). It is of paramount importance that the donor trusts his attorneys. In the event of a family conflict legal fees can become very high, and also the donor's interests can be put at risk. Therefore in these types of situations, and also where the donor has significant assets, it may be preferable to appoint a professional attorney.
A LPA is only valid, and can only be used, if it is registered with the OPG. This regardless of whether the donor retains capacity, which is a contrast to EPAs.
All attorneys must act in the best interests of the donor at all times.
The major difference between the two types of LPA, over and above the types of decisions that they relate to, is the fact that the property and affairs LPA can take effect even whilst the donor retains capacity to make such decisions for themselves. This can be very useful if they are abroad or in hospital, but can lead to conflict. If there is conflict between the donor and the attorney in such a situation, then the donor can simply revoke the LPA whilst he has capacity. However, he can also limit it to only take effect in the event that he loses capacity to make decisions about his finances.
By way of contrast, an attorney for Health and Welfare can only make decisions if the donor lacks capacity to make such decisions for himself.
Whilst a donor can chose to allow a Health and Welfare attorney to make decisions for him regarding his life sustaining treatment, this is optional. Further, a Health and Welfare LPA must not be confused with an advance decision to refuse treatment. This is an entirely separate document whereby a person can direct any medical staff looking after him in the future to not treat him in specific circumstances.
If a person has not made an LPA for property and financial affairs, and they lack capacity to make decisions for themselves in relation to their finances, then nobody has authority to make decisions for them. A Deputy must be appointed. If a person has not made an LPA for health and welfare, and they lack capacity to make decisions for themselves in relation to their health and welfare, then a decision must be made according to the best interests principle. If there is disagreement about what is in P's best interests then the Court of Protection has the ultimate decision. There is no such thing as a next of kin legally.
Whether a person has sufficient capacity to make an LPA is decided at the time the donor makes the LPA by the 'certificate provider'. This can be a professional with the relevant skills, or a person that has known the donor for 2+ years.
Deputyship
In the event that a person lacks capacity to make an LPA, or if an LPA has failed for whatever reason, including family conflict, then a deputy will need to be appointed. A deputy is usually only appointed in relation to a person's property and financial affairs, as the Court of Protection like to keep decisions about a person's health and welfare within the Court.
A financial deputy has exactly the same duties and responsibilities as a financial attorney. This means that a deputy is responsible for managing the full financial affairs of P, and act in their best interests at all times. The only difference is that their powers derive from an Order made by the Court of Protection, rather than an LPA document. The other major difference is as a result of the fact that P has not chosen their deputy, the OPG supervise deputies much more closely than they supervise attorneys. Deputies are required to take out an insurance bond to insure P against the deputy misappropriating their funds, and also the OPG require every deputy to submit an annual report to them, detailing every penny received and spent on behalf of P, and key decisions made during the year.
However, despite the end result being similar, the appointment of a Deputy is far more complex than the appointment of an attorney. It involves a rather lengthy application to the Court of Protection, using forms:
* COP1 – Application form with full detail of P, where he lives, his family;
* COP1A – Financial information form detailing all of P's assets, income, debts and outgoings;
* COP3 – Mental capacity assessment;
* COP4 – Deputy declaration confirming they are suitable to act and will act in P's best interests; and
* COP24 – witness statement setting out why a deputy is needed and any peculiarities of the case.
The application process can take up to 6 months, and will cost £400 in Court fees, plus the professional fees of a solicitor, if one is sought. Whilst a Deputyship appointment is pending, nobody is authorised to manage the finances of P, which can cause real hardship to both them and their families.
Personal Injury Trust
A trust is a legal entity created by a person ('the settlor') when they sign a special document called a ‘Trust Deed’. The trust will have assets, which can include money, under it's umbrella, and the trust is the legal owner of the money. By placing compensation obtained as a result of a Personal Injury claim or Clinical Negligence claim into a Personal Injury Trust, it will be ignored for the purposes of means assess benefits and Local Authority funding. It is not a loophole, it is just an unusual situation that the government recognises.
The law is set out in paragraph 12 of schedule 10 to the Income Support (General) Regulations 1987, and it states that following a payment as a result of personal injury, this payment will be ignored for 52 weeks. After this period, the funds will only be ignored for the purposes of means assessed benefits if they are in a trust, or held by a Deputy (if the claimant lacks capacity to execute a trust).
The people who look after the money in the trust are called ‘trustees’. The person who sets up the trust (the 'settlor') can choose who the trustees of the trust are going to be. By setting up a trust, the settlor transfers legal ownership of it to the trustees, but the trustees can only use it for the benefit of the settlor. This means that the trustees have control of the trust’s assets but have to think about the settlor's interests when making decisions. Personal Injury Trusts are also known as ‘compensation protection trusts’. A Personal Injury Trust may be brought to an end at any time that the settlor has capacity to bring it to an end, but this will affect the benefits and Local Authority funding position of the settlor.
The funds in the trust are taxed just as if they belong to the settlor personally. They also form part of his estate when he dies. The settlor can be a trustee, however, it is recommended that there are at least two trustees in addition to the settlor.
A person can have both an LPA and a trust. The attorney will deal with all parts of a person's funds that are outside of the trust. If a person lacks capacity to make a trust, then in order for their compensation to be protected from means assessment, then a deputy will need to be appointed.
ANNEX 2
Press summary for N (Appellant) v ACCG and others (Respondents) [2017] UKSC 22
22 March 2017
PRESS SUMMARY
N (Appellant) v ACCG and others (Respondents) [2017] UKSC 22
On appeal from [2015] EWCA Civ 411
JUSTICES: Lady Hale (Deputy President), Lord Wilson, Lord Reed, Lord Carnwath, Lord Hughes
BACKGROUND TO THE APPEAL
The issue in this appeal is the role of the Court of Protection where there is a dispute between the providers or funders of health or social care services for a person who lacks the capacity to make decisions for himself and members of his family about what should be provided for him.
N is a profoundly disabled man, now in his twenties, who is part of a large, close and loving family. His disabilities require that carers are in attendance throughout the day and night. His parents have been unable to co-operate with the authorities in meeting his needs and a care order was made in respect of N when he was eight. This necessarily came to an end when he was eighteen. Shortly before that point, the local authority issued proceedings in the Court of Protection seeking orders pursuant to the Mental Capacity Act 2005 (‘the MCA’) that it was in N’s best interests for N to reside in a care home and for contact with his parents to be regulated and supervised by the local authority. Responsibility for his care passed to the National Health Service when he turned 18.
It was not in dispute that N lacked the capacity to make decisions about his residence or contact with his family, nor that for the time being the care home provides a safe and settled environment for N. By the time of the hearing the issues between N’s parents and the respondent clinical commissioning group had narrowed to whether N could visit the family home and whether his mother could assist care home staff with his intimate care when she was visiting him there. The respondent considered that neither was in N’s best interests: the first would require additional trained carers which it was not prepared to fund, and the care home staff had concerns about the second, after the parents had declined an offer of the necessary training in manual handling.
At the hearing the respondent argued that the Court of Protection, on N’s behalf, could only decide between the ‘available options’ and that it was inappropriate to try to obtain a best interests declaration to put pressure on the respondent to make further funding available. The judge agreed that she could not consider the parents’ proposals for this reason, and she declared that the contact plan proposed by the respondents was in N’s best interests. The Court of Appeal upheld the judge’s decision.
JUDGMENT
The Supreme Court unanimously dismisses N’s parents’ appeal. Although the Court of Protection had jurisdiction to continue with the planned hearing, it did not have power to order the respondent to fund the parents’ plan, nor to order the actual care providers to do that which they were unwilling or unable to do. The judge had therefore been entitled to conclude that no useful purpose was served by continuing the hearing. Lady Hale, with whom all the Justices agree, gives the only judgment.
REASONS FOR THE JUDGMENT
The jurisdiction of the Court of Protection is limited to decisions that a person (‘P’) could take if he had the capacity to do so. It is not to be equated with the jurisdiction of the courts to make orders in respect of children: under the MCA the court does not become the guardian of an adult who lacks capacity and the adult does not become the ward of the court [24]. The MCA focuses on capacity in relation to a specific decision or matter. Rather than granting declaratory relief available under section 15, it is better if possible for the court to make orders under section 16 [26]. There is scope under section 16 for the court to make a decision on P’s behalf, or to appoint a deputy to make such decisions, and the court’s powers set out in section 17 include the power to decide where P is to live and what contact, if any, P is to have with any specified persons. These powers do not extend to decisions compelling third parties to accommodate, or meet, or to provide services or treatments for P [29].
The fact that the court has no greater power to take a decision than P would have had himself means that it too can only choose between the ‘available options’. It resembles the inability of the family court in children cases to oblige an unwilling parent to have the child to live with him, or to oblige an unwilling health service to provide a particular treatment for the child [35]. Nor can the court use its powers to put pressure upon a local authority to make particular decisions in exercise of its statutory powers and duties to provide public services. Such decisions can instead be challenged on judicial review principles, where the legal considerations for the public authority and for the court will be different from those under the MCA [37].
It was unfortunate in N’s case that the issue was described as one of ‘jurisdiction’ since the Court of Protection clearly has jurisdiction to make declarations and orders under the MCA. The question was rather how N’s case should be handled in the light of the limited powers of the court [38]. The court has wide case management powers, which include the identification of issues which need full investigation, and it is entitled to take the view that no useful purpose will be served by holding a hearing to resolve other issues [41]. In this case, there were good reasons for thinking that N’s parents’ wishes were impracticable and that the respondent had good reasons for rejecting them. The Official Solicitor supported the respondent. It was unlikely that investigation would bring about any further modifications or consensus and it would be disproportionate to devote any more of the court’s scarce resources to resolving matters [42].
Accordingly, since the court did not have power to order the respondent to fund what N’s parents wanted, nor to order the actual care providers to do that which they were unwilling or unable to do, the judge was entitle to conclude (as in substance she had) that no useful purpose would be served by continuing the hearing [44]. The appeal is therefore dismissed.
References in square brackets are to paragraphs in the judgment
NOTE
This summary is provided to assist in understanding the Court’s decision. It does not form part of the reasons for the decision. The full judgement of the Court is the only authoritative document. Judgements are public documents and are available at:
http://supremecourt.uk/decided-cases/index.html
The Supreme Court of the United Kingdom Parliament Square London SW1P 3BD T: 020 7960 1886/1887 F: 020 7960 1901 www.supremecourt.uk
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