Fair access to care services (FACS): prioritising eligibility for care and support
The Care Bill 2013: key principles - Key provisions
Embedding the principle of wellbeing (Clause 1)
Clause 1 provides a set of legal principles which govern how local authorities will carry out their care and support functions for adults.
- Subsection 1 establishes the overarching principle that local authorities must promote the wellbeing of the adult when carrying out functions under the Bill in relation to that person. This duty applies in relation to adults who use services, to carers and to children, in relation to their transfer to adult services.
- Subsection 2 lists outcomes or areas of activity (such as protection from abuse and neglect, control over their own care and support, social and economic wellbeing, and suitability of living accommodation) which develop the concept of wellbeing.
- Subsection 3 outlines factors which local authorities must consider in relation
to an individual, including:
- the individual’s views, wishes and feelings; preventing or delaying the development of needs for care and support
- the importance of individual participation
- the need to ensure minimum necessary restriction on the individual’s rights or freedom.
Reflecting broader local responsibilities (Clauses 2 to 7)
The Bill sets out a number of general duties on local authorities beyond the provision of care and support for individuals and carers. Local authorities will have a broader care and support role in their local communities through provision focused on the local population rather than solely on individual needs. They must:
- provide services or take steps to prevent, delay or reduce people’s needs for care and support (Clause 2)
- promote integration of care and support with NHS services and health-related provision (Clause 3)
- provide an information and advice service to help people understand how the care and support system works, and how to access the support and services they need (Clause 4)
- promote the diversity and quality of local services, so allowing people to make the best choice to satisfy their own needs and preferences (Clause 5)
- ensure cooperation between adults’ services and housing, children’s
and public health services, and with other local partner organisations, generally
and in specific cases, to:
- promote wellbeing
- improve the quality of care and support
- smooth the transition of young people to adult services
- protect against abuse or neglect
- identify lessons from serious case reviews (Clauses 6 to 7).
Starting the care and support journey: assessments, financial resources, determining eligibility, duties and powers to meet needs (Clauses 8 to 23)
One of the core objectives of the Bill is to provide clarity for people about what they can expect from the care and support they use. A local authority can meet an individual’s eligible needs for care and support in many ways, including through provision or commissioning of services, or by making direct payments (Clause 8).
Clauses 9 to 17 set out the process assessment for those who need care and for carers, ensuring that the focus is on an individual’s needs and the outcomes they seek. These clauses do the following:
- state a single right to an assessment for individuals (Clause 9), and one for carers (Clause 10), based on the individual having an appearance of needs for care and/or support. Carers will no longer have to provide ‘regular and substantial’ levels of care to qualify for assessment
- require regulations setting out how the individual’s or carer’s assessment is to be carried out, recorded and communicated to the adult, the carer and anyone else designated by the adult or carer (Clause 12)
- indicate that the Secretary of State will set out in regulations the eligibility framework for England, defining how a local authority must go about determining whether an adult’s needs meet the eligibility criteria, and specifying which needs are ‘eligible’ needs. The regulations will prescribe the minimum level of need which local authorities must meet. Local authorities can decide to arrange services to meet needs at a lower level if they wish (Clause 13)
- set out the local authority’s powers to:
- make charges in circumstances defined by regulations (Clause 14)
- introduce a cap, annually adjusted, on total costs accrued in meeting an adult’s eligible needs, above which the local authority cannot make a charge (Clauses 15 to 16)
- prescribe the approach to assessing the financial resources of an individual or carer assessed as having eligible needs, and provide regulations for carrying out a financial assessment (Clause 17)
- introduce a system of deferred payment agreements or loans, with associated regulations on matters like repayment and security (Clauses 34 and 35)
- define the duties and powers of a local authority to meet the individual’s needs for care and support, or the carer’s needs for support (Clauses 18 to 20). When a person has care and support needs but does not qualify for publicly funded financial support, they are still able to request that the local authority arrange the care and support that they require on their behalf. The local authority may charge a fee to cover the costs of this (Clauses 18(3) and 20(3))
- prevent the local authority meeting the needs for care and support of an individual subject to immigration control (Clause 21)
- prevent the local authority meeting needs for care and support by provision of a health care service, a service the NHS is required to provide, or a nursing service provided by a qualified nurse (Clause 22)
- restrict the local authority from meeting needs for care and support through action it is responsible for taking under the Housing Act 1996 or any other enactment specified in regulations (Clause 23).
The question of who is entitled to care and support is critical. One of the aims of the new statute is to provide a single route through which consistent entitlements to care and support can be established. This includes the ability for people with eligible needs to request that the local authority help them by brokering care and support on their behalf, regardless of their personal finances. Clause 19 provides the equivalent right for carers. For the first time they will have a legal entitlement to publicly funded support to meet their eligible needs, putting them on the same footing as the people for whom they care.
Care planning, personal budgets, care accounts and direct payments (Clauses 24 to 33)
The Care Bill sets out:
- the process of care and support planning to determine how needs should be met (Clauses 23 and 24)
- the provision of care and support plans for adults and support plans for carers (Clause 25), and the requirement for ongoing review of plans to ensure appropriate responses to needs and outcomes over time (Clause 27).
The process for deciding how needs are to be met includes the requirement, captured in legislation for the first time, for a personal budget, for both individuals and carers who need support. The requirement includes enabling them to understand what public funding is available to help them (Clause 26).
The Bill also introduces the concept of an independent personal budget, which applies where an individual has eligible needs but chooses not to have them met by the local authority. It is a statement, for the purpose of tracking progress towards the costs cap, of what the cost would be to the local authority if it were meeting the individual’s needs, distinguishing daily living costs, which do not count towards the cap, from other costs (Clause 28). This places a duty on the local authority to maintain an up-to-date record of the individual’s accrued care costs, to be known as a ‘care account’ (Clause 29), again distinguishing daily living costs from other care and support costs.
The Bill provides a framework for decisions in relation to direct payments, as a means of maximising the control people have over how money is spent to support them. It sets out conditions under which the local authority must make direct payments when requested to do so. The conditions are different for those with capacity to request direct payments (Clause 31) and those without such capacity (Clause 32). Clause 33 makes provision for regulations about direct payments
Moving between areas (Clauses 36 to 37)
The Bill sets out new arrangements intended to ensure that if a person decides to move home to another area, their care and support are not interrupted. It sets out responsibilities on the first authority to provide a range of information to the second authority (to which the person is moving) about their existing assessments, care and support plans, and any independent personal budget or care account (Clause 36). The second authority has a duty to assess the individual’s needs and how they should be met, having regard to the first authority’s care and support plan).
Where the assessed needs are different, or the cost of the new provision is different, the second authority must provide written explanations to the adult, carer and any other person they ask to be informed. The second authority must take all reasonable steps to reach agreement with the adult or carer about how it should meet the needs in question. If the assessment has not been completed by the time the individual moves to their new home, the second authority must meet the needs identified in the care and support plan provided by the first authority, until it has carried out its own assessment (Clause 37).
A new framework for adult safeguarding (Clauses 41 to 46)
The draft Bill sets out the statutory framework for adult safeguarding, stipulating the responsibilities of local authorities and partner bodies to protect adults at risk of abuse or neglect. The local authority will be required to carry out enquiries into suspected cases of abuse or neglect, including financial abuse (Clause 41), and to establish safeguarding adults boards in their area (Clauses 42 to 43). Under specified conditions a person or body must supply information to a safeguarding adults board at its request. This provision could apply to a GP who has been providing medical advice or treatment to a person about whom a board conducts a serious case review. The safeguarding adults board may use the information only for the purpose of its functions (Clause 44).
Transition from children’s care and support services (Clauses 55 to 63)
To support young people’s transition between children’s and adults’ social care, and make it as smooth as possible, the Bill gives local authorities powers to assess children, young carers and the carers of children under the adult statute. The Bill provides a new protection to ensure that any service being provided under children’s legislation must continue after the young person’s 18th birthday, until assessment and care planning required under the adult statute are complete, and adult care and support are ready to meet their needs.