Legal and policy context – adult carers

Legal and policy context – adult carers

This section highlights areas of law and policy that have particular relevance for carers and breaks (in England). Most commissioners will be familiar with the key principles and duties of the Care Act 2014 (summarised below). Practitioners or organisations that undertake carers’ assessments or provide information also need to be fully conversant with specific duties and regulations on assessment, eligibility, charging, personal budgets and direct payments.

The Children & Families Act 2014 extended the right to a needs assessment to all young carers, regardless of who they care for or the type of care provided. This means that when a child is identified as a young carer, the needs of everyone in the family will be considered, triggering both children’s and adults’ support services.

Also of relevance are duties under the Equality Act (2010) and duties on local authorities to promote social value under the Public Services (Social Value) Act (2013).

The Health and Care Act 2022

Following the implementation of the Health and Care Act 2022 on 1 July 2022, clinical commissioning groups (CCGs) have been abolished and their functions have been assumed by integrated care boards (ICBs). Under Section 25 of The Health and Care Act 2022, ICBs have a legal duty to involve unpaid carers and their local representatives in the commissioning and designing of services that impact them.

Health and wellbeing boards continue to be responsible for the development of joint strategic needs assessments and joint local health and wellbeing strategies. However, they must now have regard to the integrated care strategy when preparing their joint local health and wellbeing strategies in addition to having regard to the NHS Mandate.

The Care Act 2014

The Care Act 2014 places a number of statutory duties on local authorities. The Act fully recognises the role of carers, their need for support in their own right and their need for a life beyond caring, including paying attention to employment. What this means for carers is summarised below.

• Promoting wellbeing – local authorities must have regard to promoting wellbeing, looking at an individual’s life holistically and considering care and support needs in the context of the person’s skills, ambitions and priorities. The local authority should consider how carers can be supported to look after their own health and wellbeing and to have a life of their own alongside their caring responsibilities. People should be considered in the context of their families and support networks to promote health and wellbeing, thereby supporting the person to live as independently as possible for as long as possible.
• Prevent, reduce, delay – local authorities need to ensure the provision of preventive services. Carers play a vital role in preventing the need for other care and support for the people they care for. It is important to prevent carers from developing needs for care and support themselves. A wide range of services, facilities and resources can contribute to preventing, delaying or reducing the needs of carers, improving their lives by enabling them to continue to have a life of their own alongside caring.
• The duty to prevent carers from developing needs for support is distinct from the duty to meet their eligible needs. While a person’s eligible needs may be met through universal preventive services, this will be an individual response following an assessment. Local authorities cannot fulfil their universal prevention duty simply by meeting eligible needs, and nor would universal preventive services always be an appropriate way of meeting carers’ eligible needs.
• Information and advice – local authorities must: ‘establish and maintain a service for providing people in its area with information and advice relating to care and support for adults and support for carers’. Local authorities must respond to the specific requirements that carers have for both general and personal information and advice. This includes breaks from caring. Information needs to be relevant, available and accessible and hence in formats, languages and places that carers can access. People should also have tailored information and advice following an assessment.
• Market shaping – local authorities have a duty to facilitate the market, using a wide range of approaches so that it meets the needs of all people in their area who need care and support, whether arranged or funded by the state, by the individual themselves, or in other ways. They need to ensure there are a variety of different service providers available that in turn make available a wide range of appropriate, high quality services to meet the needs of the local population. Local authorities should also seek to understand trends of support, carer demographics and employment needs, so as to better plan future support.
• Carers’ assessment and eligibility – carers have legal rights to an assessment of their needs and, where eligible, support to meet their needs. Carers’ assessments must seek to establish the carer’s needs for support and the sustainability of the caring role itself, as well as the carer’s willingness to carry on their caring role. The carer’s assessment must also consider the outcomes that the carer wants to achieve in their daily life, their activities beyond their caring responsibilities and the impact of caring upon those activities.
• Meeting needs ­– local authorities are not under a duty to meet any needs that are being met by a carer. They should record in the care and support plan which needs are being met by a carer, and consider putting in place plans to respond to any breakdown in the caring relationship. A carer must be involved in the planning process where they are meeting the care and support needs. The Care Act allows for the charging of carers but the statutory guidance sets out how this can be a false economy. It makes clear that a local authority must not charge a carer for care and support provided directly to the person they care for under any circumstances. Those charges, if they apply, must be levied on the person to whom the support is delivered (even if that person does not have eligible needs). Local authorities should consider how to align personal budgets where they are meeting the needs of both the carer and the adult needing care concurrently.
• Charging – the Care Act allows for the charging of carers but the statutory guidance sets out how this can be a false economy. It makes clear that a local authority must not charge a carer for care and support provided directly to the person they care for. Those charges, if they apply, must be levied on the person to whom the support is delivered (even if that person does not have eligible needs). Local authorities should consider how to align personal budgets where they are meeting the needs of both the carer and the adult needing care concurrently.
• Duty of cooperation and integration – the Care Act makes integration, cooperation and partnership a legal requirement on local authorities and on all agencies involved in public care, including the NHS, independent or private sector organisations, some housing functions and the CQC.

The NHS Long Term Plan

The plan commits to developing fully integrated community-based health care and has a key focus on personalisation. There is a commitment to rolling out the NHS model of universal personalised care, extending social prescribing, and accelerating the use of personal health budgets.

The plan includes a focus on supporting carers and promises a more proactive approach to supporting young carers. Improvements address introducing quality markers for primary care, highlighting best practice in identifying carers and providing them with appropriate support, including breaks.

NHS Long Term Plan

Adult social care reform white paper

People at the Heart of Care: adult social care reform white paper (2021) sets out a 10-year vision for adult social care. There is a section dedicated to unpaid carers, and recognises that existing legislation is not always being realised. It includes information on Health and Care Bill provisions which includes a duty on Integrated Care Boards to involve carers in commissioning decisions and equivalent provisions for NHS England.

The White Paper sets out a direction of travel and ethos for unpaid carers, which includes the following statements.

We want unpaid carers to be able to say:

• I am supported to provide care as I wish and do so in a way that takes into account my own access to education, employment, health and wellbeing.
• I have a life outside caring and I am able to remain connected to the people who matter to me.
• I know my needs are equally recognised and my goals and aspirations are respected and fulfilled.
• I have the right information and advice to be able to make informed decisions.
• I have access to appropriate support, that suits my needs including respite care and carers’ breaks.

People at the Heart of Care: adult social care reform white paper (2021)

CarersUK policy briefing (2021)

Regulatory context: the CQC

The CQC is the independent regulator of health and social care in England. It monitors, inspects and regulates services to make sure they meet fundamental standards of quality and safety and it publishes findings, including performance ratings, to help people choose care.