The Care Act 2014 – what does it mean for you?
The first phase of the Care Act has now come into force with more to follow next spring. Holly Chantler, Senior Associate Solicitor at Morrisons Solicitors LLP, provides a run-down of how we can expect local authorities to help in the care of older friends and family.
What is the Care Act 2014?
The Care Act 2014 consolidates and updates the law on adult care in England and is widely considered to be the most significant piece of legislation in this area for 60 years.
The majority of the provisions of the Care Act were implemented on 1 April 2015, with others due to follow in April 2016.
Duties of local authorities
The Care Act introduces the following general duties on local authorities:
- promotion of individual well being
- prevention of needs arising for care and support by providing or arranging services, facilities or resources
- promotion of integration of care and support with health and other services
- provision of information and advice to adults and carers
- promotion of diversity and quality in provision of services
- co-operation generally and in specific cases with third parties, such as the NHS
Assessing needs of the care user and carers
Local authorities are required to assess the needs of individuals who may require care and support, as well as the needs of their carers, regardless of the nature or extent of those needs or the individual’s ability to fund that care or support.
Individuals may approach the local authority directly for an assessment or be referred by a third party, such as a hospital or GP.
The purpose of the assessment is to identify a person’s needs and consider whether these needs are eligible for care and support from the local authority.
The national eligibility criteria is set out in the Care and Support (Eligibility Criteria) Regulations 2014 and establishes a minimum threshold for adult care and support needs and carer support needs which local authorities must meet.
The threshold for individuals is based on how their needs affect their ability to achieve various outcomes, such as maintaining personal hygiene and being able to make use of the home safely, and how this impacts on their wellbeing.
Carers also have their own eligibility criteria and local authorities must consider whether:
- the carer’s needs arise as a consequence of providing necessary care for an adult
- the effect of the carer’s needs is that any of the circumstances specified in the Eligibility Regulations apply to the carer
- as a consequence of that fact there is, or there is likely to be, a significant impact on the carer’s wellbeing.
Setting out a care plan
If an individual or a carer has eligible needs, a care and support plan must be developed setting out how these needs will be met regardless of a person’s financial situation. The plans must be kept under review, with the guidance to local authorities suggesting this is done “no later than every 12 months”.
The individual (or their representative) must be involved throughout the planning process. If any of the person’s needs are being met by a carer, the carer must also be involved.
Local authorities will be able to charge for the cost they incur in providing social care and support services, unless one of the exceptions in the regulations and guidance to the Care Act applies. Local authorities are under a duty to carry out a financial assessment if they are going to charge for services.
Subject to various exceptions, if a person’s capital is in excess of £23,250 they will not be eligible for financial assistance from the local authority.
If the person’s capital falls below £14,250, they will not be required to contribute towards the cost of their care and support from their capital but will still be required to contribute from their income.
Individuals with more than the upper capital limit can still ask the local authority to arrange their care and support and this must be provided where the person’s needs are not being met by care in a care home. If the person is receiving care in a care home, the local authority has a discretion to meet those needs and arrange the care.
The Care Cap
The Care Act introduces a cap on care costs. The details of this are yet to be finalised and these provisions are not due to be implemented until April 2016.
Where local authorities do not charge
Local authorities must not charge for the following types of care and support:
- intermediate care, including re-enablement, which must be provided free of charge for up to six weeks. The purpose of this type of care is to prevent a person’s re-admittance to hospital and where the intention is for the person to return home
- community equipment (aids and minor adaptions). Aids must be provided free of charge whether provided to meet or prevent/delay needs. A minor adaption is one that costs £1,000 or less
- care and support provided to people with Creutzfeldt-Jacob Disease (CJD)
- aftercare services/support provided under Section 117 of the Mental Health Act 1983
- any service or part of service which the NHS is under a duty to provide. This includes Continuing Healthcare and the NHS contribution to Registered Nursing Care
More broadly, any services which a local authority is under a duty to provide through other legislation may not be charged for under the Care Act 2014.
Assessment of needs and care planning may not be charge for, since these processes do not constitute meeting needs.
The Care Act introduces personal budgets for individuals with care and support needs, as well as their carers. Personal budgets are designed to give individuals wider choice and control over the provision of care and support services and work by providing an estimate of the funds available to meet a person’s assessed needs before the care and support planning begins.
Personal budgets are available to everyone whose needs are met by the local authority (including those whose financial resources are above the financial limit). Where local authorities are asked to make arrangements to meet the needs of someone whose financial resources are above the financial limit, the local authority may make a charge. This fee will not form part of the personal budget but may be presented alongside the budget to help the person to understand the total charges to be paid.
Direct payments for care
The Care Act provides a power to enable direct payments to be made to the person in need of care and support, or a nominated or authorised person in their place if appropriate.
A direct payment is a monetary payment made to an individual to meet some or all of their eligible care and support needs and it provides independence, choice and control by enabling the individual to arrange their own care.
The direct payment must be sufficient to meet the needs of the person the local authority is under a duty to meet.
Deferred payment agreements
Deferred payment agreements defer the payment of care fees usually until after death, or on sale of the person’s home, and work by securing the debt against the person’s property.
Local authorities are under a duty to offer deferred payment agreements to anyone who meets the criteria for the scheme and they are able to charge interest and administration charges incurred in providing the agreement.
The Care Act introduces various safeguarding obligations on local authorities and creates new penalties (both civil and criminal).
Local authorities have a duty to arrange independent advocacy if an individual would experience difficulty in participating in their assessment and/or preparation of a care and support plan and there is no one else appropriate and able to assist them.
If you would like to discuss further how the Care Act may affect you or a friend or family member, please contact Holly at Morrisons Solicitors LLP.
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