The Care Act 2014 The Legal Framework

The Care Act 2014 (‘CA 2014’)

  1. 1. Section 1(1) of the CA 2014 sets out a general duty of a local authority in exercising their functions in the case of an individual, to promote that individual’s well-being.
  1. 2. Section 1(2) defines well-being 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;

(i)the individual’s contribution to society.

  1. 3. Section 1(3) of the CA 2014 sets out that local authorities have a duty to have regard to the following when exercising their functions:

(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 well-being 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;

(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.

1.4. Section 8 sets out how a local authority may meet an individual’s needs:

(1)The following are examples of what may be provided to meet needs under sections 18 to 20—

(a)accommodation in a care home or in premises of some other type;

(b)care and support at home or in the community;

(c)counselling and other types of social work;

(d)goods and facilities;

(e)information, advice and advocacy.

(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;

(c)by making direct payments.

  1. 5. Section 18 of the CA 2014 sets out the duty of a local authority to meet the adult’s needs for care and support which meet the eligibility criteria if:

(a)the adult is ordinarily resident in the authority’s area or is present in its area but of no settled residence,

(b)the adult’s accrued costs do not exceed the cap on care costs, and

(c)there is no charge under section 14 for meeting the needs or, in so far as there is, condition 1, 2 or 3 is met.

  1. 6. Section 27 of the CA 2014 sets out a duty of local authorities to review care and support plans:

(1)A local authority must—

(a)keep under review generally care and support plans, and support plans, that it has prepared, and

(b)on a reasonable request by or on behalf of the adult to whom a care and support plan relates or the carer to whom a support plan relates, review the plan.

(2)A local authority may revise a care and support plan; and in deciding whether or how to do so, it—

(a)must have regard in particular to the matters referred to in section 9(4) (and specified in the plan under section 25(1)(d)), and

(b)must involve—

(i)the adult to whom the plan relates,

(ii)any carer that the adult has, and

(iii)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.

1.7. It is clear from the assessment report, care and support plan and records provided to us by the Council that Ms Tarh clearly has eligible needs and the local authority have a duty to meet these needs in accordance with the sections quoted above.

Statutory Guidance

1.8. Detailed guidance on the exercise of duties and powers set out in the Care Act 2014 has been issued in the form of the Care and Support Guidance (as amended October 2018) (‘the Guidance’). Given its statutory status, the Guidance must be followed absent good reason to deviate from it.

1.9. At paragraph 1.5 it sets out the definition of “wellbeing”:

1.5 ‘Wellbeing’ is a broad concept, and it is described as relating to the following areas in particular:

personal dignity (including treatment of the individual with respect)

physical and mental health and emotional wellbeing

protection from abuse and neglect

control by the individual over day-to-day life (including over care and support provided and the way it is provided)

participation in work, education, training or recreation

social and economic wellbeing

domestic, family and personal

suitability of living accommodation

the individual’s contribution to society

1.10. In relation to meeting an individual’s needs under the CA 2014 the Guidance sets out:

Considerations in meeting needs

10.19 However the local authority is meeting needs, the principles in this chapter should be followed, such as ensuring the process is person-centred, and involving and taking all reasonable steps to agree the plan with the person.

10.20 The local authority must take into consideration the individual’s preferences. The authority should consider the person’s goals in approaching the authority for support, and the level or nature of support desired. Where the person wishes to take more control over their own care and support, this should be reflected in the route taken. Similarly, where the person asks for more local authority support (for example, because they lack the skills or confidence to engage with the provider market and do not have family or friends who are willing and/or able to support them with this), the authority should respond accordingly in the decision taken about how needs will be met.

1.11. Paragraph 13.12 sets out what a review of a care and support plan should consider:

The review should be a positive opportunity to take stock and consider if the plan is enabling the person to meet their needs and achieve their aspirations. The process should not be overly-complex or bureaucratic, and should cover these broad elements, which should be communicated to the person before the review process begins:

have the person’s circumstances and/or care and support or support needs changed?

what is working in the plan, what is not working, and what might need to change?

have the outcomes identified in the plan been achieved or not?

does the person have new outcomes they want to meet?

could improvements be made to achieve better outcomes?

is the person’s personal budget enabling them to meet their needs and the outcomes identified in their plan?

is the current method of managing it still the best one for what they want to achieve, for example, should direct payments be considered (see chapter 11 on personal budgets)?

is the personal budget still meeting the sufficiency test?

are there any changes in the person’s informal and community support networks which might impact negatively or positively on the plan?

have there been any changes to the person’s needs or circumstances which might mean they are at risk of abuse or neglect?

is the person, carer, independent advocate satisfied with the plan?

1.12. Paragraphs 13.20 - 13.22 explains the process for local authorities where a request for a care and support plan has been made:

13.20 In addition to the duty on local authorities to keep plans under review generally, the Act provides a duty on the local authority to conduct a review if a request for one is made by the adult or a person acting on the adult’s behalf. 47 Local authorities should provide information and advice to people at the planning stage about how to make a request for a review. This process should be accessible and include multiple routes to make a request – phone, email, or text for example. The information given to people should also set out what happens after a request is made, and the timescales involved in the process. (our emphasis)

13.21 The request process should be accessible and streamlined, with local authorities acting promptly after a request has been received. Consideration should also be given to the accessibility needs of the local population. This may, for example, include multiple language versions, and non-internet routes to request for people who may not have access to the internet, or in areas of digital exclusion. Local authorities should also consider the role that local community and voluntary organisations can play to help people log requests. (our emphasis)

13.22 The right to request a review applies not just to the person receiving the care, but to others supporting them or interested in their wellbeing. For example a person with advanced dementia may not be able to request a review, but a relative or a neighbour may want to draw the attention of the local authority to a deterioration in the person’s condition. The local authority should consider the request even if it is not made by the adult or their carer.

1.13. In relation to suitability of housing the CA Guidance sets out:

15.50 Housing and the provision of suitable accommodation should be considered when considering the provision of care and support and carers’ support. The setting in which a person lives, and its suitability to their specific needs can have a major impact on the extent and means to which their care and support needs can be met, or prevented, over time. Housing is therefore a crucial health-related service which is to be integrated with care and support and health services to promote the wellbeing of adults and carers and improve the quality of services offered.

15.53 Housing plays a critical role in enabling people to live independently and in helping carers to support others more effectively. Poor or inappropriate housing can put the health and wellbeing of people at risk, where as a suitable home can reduce the needs for care and support and contribute to preventing or delaying the development of such needs. Housing services should be used to help promote an individual’s wellbeing, in which people in need of care and support and carers can build a full and active life. Suitability of living accommodation is one of the matters local authorities must take into account as part of their duty to promote an individual’s wellbeing. (our emphasis)

15.60 In many cases, the best way to promote someone’s wellbeing will be through preventative measures that allow people to live as independently as possible for as long as possible.

15.61 A local authority must provide or arrange for the provision of services that contribute towards preventing, reducing or delaying the needs for care and support (see chapter 2). Housing and housing related support can be a way to prevent needs for care and support, or to delay deterioration over time. Getting housing right and helping people to choose the right housing options for them can help to prevent falls, prevent hospital admissions and readmissions, reduce the need for care and support, improve wellbeing, and help maintain independence at home.