Determining eligibility under the Care Act 2014

How to make an eligibility determination

There are a number of key elements to consider when making an eligibility determination following assessment:

• Use the knowledge and information gathered during the assessment
• Apply the national eligibility criteria (The Care and Support (Eligibility Criteria) Regulations 2015; see the sections in this guide entitled ‘Eligibility outcomes for adults with care and support needs’ and ‘Eligibility outcomes for carers with support needs’)
• Consider principles of risk in relation to wellbeing
• Enable effective decision-making
• Be transparent and collaborative
• Ensure that decisions are evidenced appropriately

Use the knowledge and information gathered during the assessment

Making an eligibility determination requires:

• consideration of the evidence, i.e. the information gathered in the assessment about what is important to the individual, what needs they have and what outcomes they want to achieve
• the assessor’s professional judgement to establish what impact the person’s needs have on their wellbeing.

The eligibility determination cannot be made until after the assessment when the full extent of the person’s needs has been identified, except when urgent need is being met – see SCIE’s Assessment guides. There are two types of outcomes to be considered:

• the desired outcomes of the individual to live their day-to-day life, which are the starting point for the needs assessment
• the outcomes specified in The Care and Support (Eligibility Criteria) Regulations 2015, which are used to determine eligibility (see the section ‘Definition’ in this guide).

The local authority must consider an individual’s need over an appropriate period of time to ensure that their needs have all been accounted for when eligibility is being determined. Please see the SCIE guide on fluctuating needs.

Information on the care being provided by a carer can be captured during assessment, but the eligibility determination must be based solely on the adult’s needs regardless of whether they are met by the carer.

Apply the national eligibility criteria

(The Care and Support (Eligibility Criteria) Regulations 2015; see the sections in this guide called ‘Eligibility criteria for adults with care and support needs’ and ‘Eligibility criteria for carers with support needs’)

The process draws on the information gathered during assessment and considers how that is weighted in terms of significant impact on the individual’s wellbeing in relation to the outcome criteria. Consideration of wellbeing will be different for each individual when making the eligibility determination.

Local authorities are required to provide a record of the eligibility determination and the reasons for the determination. This may well include a record of what the person is unable to achieve, or only able to achieve with assistance. This has to be carer blind, which means that any impact on wellbeing that would be reduced or minimised by what carers are currently doing must be ignored for the sake of the determination itself. What care and support is provided by the carer should, however, be taken into consideration when the local authority makes its care and support plan.

The Care and Support (Eligibility Criteria) Regulations 2015 require assessors to think causally when determining eligibility. Deciding whether unachieved outcomes constitute a significant impact on a person’s wellbeing has to be a plausible but ultimately tentative judgement. If it is felt that there is not enough information to make an eligibility determination, assessment should be resumed.

Determining whether needs arise from or are related to physical or mental impairment or illness should be simple. However, the assessor should not interpret this test to mean that the person’s general practitioner must be consulted or that a formal diagnosis is required. It may help the assessor to consider whether the person would likely have been able to achieve a given outcome, if they did not have a physical or mental impairment or illness.

The information gathered about needs and outcomes can be extracted through conversation with the individual, and other people if it seems necessary to triangulate what the person is communicating. Needs and outcomes are most likely observable or ‘testable’, although the assessor should of course take care to consider fluctuating or underlying needs.

When discussing outcomes with the person, it may be helpful to think of the specified outcomes in the regulations simply as usual domains in a person’s life. The person themselves may phrase their desired outcomes not in terms of ‘developing and maintaining family or other personal relationships’ but instead say that they quite enjoy watching a game of football in a pub. It is up to the assessor to think through the person’s life and check whether an inability to access a social space means that the person cannot access the community or will not maintain their social relationships, or both. If there are other things in their lives contributing to the same outcomes, the game in the pub may not be that important, but on the other hand, that single activity could fill several voids in the person’s life. This means that the assessor should not interpret the ‘specified outcomes’ in the eligibility regulations as the only ones to consider. They are indications of what would normally be said to constitute a full life.

Making the eligibility determination requires professional judgement of how the person’s wellbeing is affected as a result of their needs. The assessor will build this judgement as they go through the assessment with the person. So while the eligibility determination can only be made after the assessment when the collection of information about the person is complete, the assessor’s judgement of how the person’s wellbeing is affected, is in reality shaped alongside the assessment.

Wellbeing is defined in the Care Act 2014. Section 1 of the Care Act 2014 sets out the areas of wellbeing. These are listed in this guide in the section ‘How is wellbeing understood?’. The areas of wellbeing can help the assessor to conceptualise impact on the person. No single area of wellbeing is legally more important than the other, but to the individual, personal dignity may for instance matter more than their ability to contribute to society. Where the inability to achieve two or more outcomes affects only one area of wellbeing, the assessor should be aware that the impact may be so significant that the other unaffected areas of wellbeing are irrelevant; the person could still be considered eligible.

The assessor’s conversation with the person should provide a basis for understanding the person’s values and priorities. Reliance on this, which the assessor should consider recording as evidence to support the justification of their decisions later, will enable the assessor to take a personalised approach to eligibility determinations.

In judging what impact there may be on a person’s wellbeing, the assessor may find it helpful to ask themselves questions, to help bring out a clearer picture of the person’s requirements for care and support. For example, they may wish to consider the following:

• Why has the person approached the local authority in the first place?
• How does their inability to achieve x and y outcomes make the person feel?
• Are other people affected too?
• What would happen if their carer(s) did not do x and y for them?
• What will most likely happen if the person does not receive information and advice/care services/is not put in touch with a voluntary organisation?
• What would we reasonably expect should be in a person’s life?
• How often does the person say they need support? Occasionally? Frequently? Always?
• Would the person describe the impact on their life as none? Some? Or major? Does the assessor have reason to doubt their own assessment?
• What risks are the person currently choosing to take (for instance to maintain control over their life or independence) and are these acceptable?

The following diagram gives a pictorial representation of the eligibility determination process.

Consider principles of risk in relation to wellbeing

The Care and Support (Eligibility Criteria) Regulations 2015 allow assessors to consider risk, just as many may already be doing.

It is important for practitioners to analyse risk using the information they have gathered during the assessment, along with their knowledge of the person within their social context.

It is the risk of being unable to achieve the outcomes that causes, or risks causing, a consequential significant impact on the person’s wellbeing. The assessor’s decision-making on whether the impact on the individual’s wellbeing is significant will always be a matter of professional judgement.

Risk factors that should be considered include:

• likelihood
• severity
• imminence
• physical safety
• self-harm
• self-neglect
• abuse (safeguarding)
• harm to others.

The assessor should note that where a safeguarding risk is uncovered, a safeguarding enquiry must be undertaken. The safeguarding enquiry is a separate process, running in parallel with the assessment.

It is important to consider how the risks identified may impact upon social domains such as the individual’s health, ability to live independently and/or ability to fulfil social roles such as education or work.

Existing structures within a local authority or other organisations may be used to review risk and, if appropriate, may involve partnership working and/or the wider community to support risk management. In addition, existing local authority assessment processes may include a section on risk and risk factors gleaned from these processes should be borne in mind when determining eligibility.

Effective risk management allows people to make appropriate choices for themselves, ensuring that support is provided to maximise the individual’s independence. For practitioners, this means having the confidence to analyse and weigh up risks, to understand the consequences of decisions made, and to identify mitigating factors as well as the contingencies that need to be in place to avoid negative consequences.

Enable effective decision-making

Eligibility determinations will consider the consequential significant impact (or effect) on wellbeing through the three conditions in the eligibility criteria (see the sections in this guide called ‘Eligibility criteria for adults with care and support needs’ and ‘Eligibility criteria for carers with support needs’). It is important to note that the Care Act considers the impact (or effect) on wellbeing rather than on ‘unmet need’.

Effective decision-making balances the proportionality of risk involved in relation to the impact (or effect) on the individual’s wellbeing. In considering the relevant risks, it is vital to ensure that professionals develop confidence in making good decisions, which includes recognising that there will be differences between individuals. Similarly, different ‘tools’ or resources to support decision-making will suit different people.

One example is the risk influences tool (from Good decision-making: Practitioners’ handbook; Research in Practice, 2013), which can be used to identify how common concerns and biases may affect decision-making. It includes consideration of six main areas:

• repetition
• adjustment
• wariness of lurking conflict
• credibility
• availability/recall
• prejudice.

Be transparent and collaborative

The local authority and the individual work jointly in relation to eligibility, which includes taking the individual’s view into account where appropriate. It is important to use a strengths-based approach and to consider positive risk-taking, by enabling individuals to contribute to eligibility decisions that support them to achieve their desired outcomes and to promote their independence.

However, the final decision on the eligibility determination remains with the local authority.

Ensure that decisions are evidenced appropriately

Decisions made must be accompanied by appropriate evidence to show how the determination has been arrived at, what has been considered, and what risks have been taken into account. Good decisions do not have to be ‘right’: what is important is to show how they have been considered and demonstrate this through appropriate evidence. This evidence will be recorded in the eligibility statement.

What must local authorities do after an eligibility determination?

Whether or not the local authority decides that an adult with care and support needs or a carer with support needs has eligible needs, it must inform the individual of its eligibility determination and the reasons for it. It must also provide the individual with a written record of the determination and reasoning.

If no eligible needs have been identified, the local authority must provide information and advice for the individual on:

• what can be done to meet or reduce the needs that are not eligible
• what services are available in the community that can support the individual in meeting those needs
• what can be done to prevent or delay the development of needs in the future.

See further detail on providing information and advice.

If some but not all of the individual’s needs are eligible, the local authority must:

• provide information and advice for the individual about the needs that are not eligible:
  • what can be done to meet or reduce those needs
  • what services are available in the community that can support the individual in meeting the needs
  • what can be done to prevent or delay the development of needs in the future
• consider how the eligible needs will be met
• carry out a financial assessment where it proposes to make a charge for meeting those needs.

If the individual has eligible needs, the local authority must:

• consider how those needs will be met
• carry out a financial assessment where it proposes to make a charge for meeting the needs.

In all cases, any preventative measures should be considered, regardless of the outcome of the eligibility determination, such as telecare, enablement/reablement.

The local authority should bear in mind that eligibility may change over time due to changing circumstances or needs e.g. moving location, changing general practitioner.

The local authority must establish whether the adult is ordinarily resident in its area, and meet:

• eligible needs of adults who are ordinarily resident
• eligible needs of carers where the adult they are supporting is ordinarily resident. This is the case even if the carer lives in a different area.