CARE ACT 2014

It is important that a needs assessment is undertaken; as of April 2016, this will allow the local authority to set a care account to record the money spent. The account will record the tally towards the care cap.

The former care legislative system was complex and difficult to navigate and consisted, in the main, of a patchwork of statutes, regulations, directions, statutory and local guidance and case law.

The Care Act 2014 adopts and implements many of the recommendations of the Law Commission on Adult Social Care⁹, published in May 2011, and is the largest single piece of community care legislation since the Beveridge reforms of the welfare system of 1948, sweeping away and recodifying more than 50 years worth of law and policy in relation to the provision of adult social care and its funding. It consolidates and updates a patchwork of legislation to form a unified social care statute, leaving much of the detail to be worked out in regulations and/or guidance.

The Care Act 2014 received Royal Assent in May 2014 and came into force in April 2015, with the financial cap on care fees being implemented in April 2016.

Assessment of need for care and support

At the core of the legislation is the government’s policy to ensure that people have a right to a free needs assessment if they appear to have a need for care and support and that all social care support should be ‘personalised’.

People should have choice and control over any care and support they need to enable them to live their lives and stay independent. Coupled with this is the introduction of ‘personal budgets’ to enable people to get the care to meet their needs that suits them.

The duty to assess arises under the Care Act 2014, s9 (Person) and s10 (Carer). The Act is supported by the Care and Support (Assessment) Regulations 2014 and guidance. The assessment is both a key process and a critical intervention.

The threshold to determining the need for care and support services is a low one, and the apparent need does not have to be urgent or immediate, and it is irrelevant as to whether or not there is an ultimate prospect that a need will be met (R v Bristol City Council ex p Penfold [1998] 1 CCLR 315)
Before an assessment is undertaken, the local authority should provide the person with sufficient information, in an accessible format, about the assessment process to enable them, as far as possible, to be involved in the process and be prepared in advance.

Someone, such as a friend or family member, can be at the assessment. If the person doesn’t have anyone else to support them and has substantial difficulty in communicating what they want, understanding the information given, or remembering it, or weighing up the information given in order to make decisions about their care and support, the Act provides that the local authority must arrange an independent advocate.
No charge can be made for the assessment of need for care and support.

Purpose of the needs assessment
The purpose of an assessment should identify:
 care and support needs
 what outcomes the individual is looking to achieve to maintain or improve their wellbeing
 how care and support might help in achieving those outcomes

The outcome of the assessment is to provide an overall picture of the person’s needs before the local authority looks at considering the person’s eligibility and the provision to meet those needs.
A key factor is that the local authority is required to consider all the person’s care and support needs regardless of any support being provided by a carer. Any carer support must not be taken into account until after the local authority has determined the person’s eligible needs, during the care and support planning stage.
As to whether or not the person or carer has eligible needs, that should be made after the assessment.
Refusal of assessment
A local authority is not required to carry out an assessment where a person with possible care and support needs or a carer:
 feel that they do not need care
 may not want local authority support

This can be overridden where they:
 lack capacity to take that decision, and an assessment would be in their best interests
 are experiencing, or at risk of experiencing, any abuse or neglect

Note: A person may feel that they do not need care or may not want local authority support; however, it is important that a needs assessment is undertaken, as from April 2016, this will allow the local authority to set a care account to record the money spent in meeting the eligible needs it considers must be met. The account will record the tally towards the care cap.