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Care Act 2014: access to housing with care and support

This content applies to England

From 1 April 2015, Part 1 of the Care Act 2014 consolidates the existing law relating to adults with care and support needs, and sets out the legal framework for the provision of social care to adults.

The emphasis in the Care Act is on 'meeting needs' to improve the 'well-being' of adults who need care and support because of physical or mental impairment or illness.

Overview of the Act

The Care Act is concerned with meeting the needs of adults with care and support needs, and the support needs of their carers. Where the term 'adult' is used on this page, it refers only to how a provision of the Care Act relates to adults with care and support needs, and not to carers. For information on support for carers, see below.

The care and support needs of children are not covered by the Care Act, except at the point of transition to adulthood. See 'Transition to adulthood' below.

The Department of Health has produced the Care and Support Statutory Guidance to the Care Act. Local authorities must 'have regard' to this guidance when carrying out their responsibilities under the legislation. An authority must be able to justify any actions it takes that depart from the guidance.

The duties in the Care Act fall on the social services department of:

  • a county council in England
  • a district council for an area in England for which there is no county council
  • a London borough council
  • the Common Council of the City of London.

Care and support

Department of Health guidance defines care and support as the help some adults need to live as well as possible with any illness or disability they may have.

The guidance states that it can include help with things like:

  • getting out of bed
  • washing
  • dressing
  • getting to work
  • cooking meals
  • eating
  • seeing friends
  • caring for families
  • being part of the community.

It might also include emotional support at a time of difficulty and stress, helping people who are caring for an adult family member or friend or even giving others a lift to a social event.

Meeting and preventing care and support needs

Social services must aim to prevent the need for care and support arising, or existing needs becoming greater[1] by trying to identify adults in their area with unmet needs for care/support, and services, facilities and resources which it could make use of in its prevention work.

Social services must also try to integrate care and support provision with health and health-related provision where this will promote the well-being of adults in its area. For this purpose, the provision of housing accommodation is a health-related provision.[2]

The Care Act gives examples of what could be provided, either by the authority itself, by another provider, or via a direct payment, to meet an adult's care and support needs:[3]

  • accommodation in a care home or other premises
  • care/support at home
  • counselling and social work
  • goods and facilities
  • information, advice and advocacy.

Housing and the Care Act

An understanding of the Care Act could be of assistance to housing casework, as, for example, an assessment under the Care Act could help to:

  • establish priority need
  • show accommodation is not reasonable to continue to occupy
  • prevent homelessness through the provision of services or care that enables an adult to remain in accommodation
  • improve priority on an allocations scheme
  • defend a possession claim
  • obtain supported housing or a place in a care home.

Duty to provide accommodation?

Prior to the implementation of the Care Act on 1 April 2015, there was a duty to provide accommodation under section 21 of the National Assistance Act 1948 for a person aged 18 or over who needed 'care and attention' because of illness, disability, old age or another reason, as long as the care and attention was not 'otherwise available'. The Care Act replaces the specific statutory duty to provide accommodation with a general duty to 'meet the needs' of a person who needs care and support. It is arguable that this will make it harder to obtain housing for people with eligible care needs.

Case law relating to the phrase 'care and attention' as found in the National Assistance Act 1948 had held that the phrase had to mean something more than mere accommodation.[4] The principles deriving from those cases apply to the Care Act 2014, and although a need for 'care and support' may have a different meaning to a need for 'care and attention', neither includes a need for accommodation by itself.[5]

However, there is potentially a duty to meet eligible needs with the provision of accommodation where the council is providing 'accommodation-related' services.[6] Services are defined as 'accommodation-related' where they are of a sort normally provided in the home (such as domestic tasks, or checking that the home environment is safe), or where they would be 'effectively useless' if the client was homeless. In most cases this decision will be left to the 'good judgement and common sense' of the council.

In one case, the High Court quashed the council's care and support plan where the council had not adequately considered whether it may be under a duty to provide accommodation. There was also no evidence that the council had asked itself whether, even if services could have been provided outside a home environment, they would be 'effectively useless' if the client was sleeping on the street.[7]

Needs assessment prior to Care Act

Prior to 1 April 2015, access to care and support for adults was determined following an assessment under section 47 of the NHS and Community Care Act 1990. The duty to assess was triggered where there was an apparent need for a community care service. Community care services could be provided under a large number of statutes, all of which have been disapplied in England, either wholly or in part, by the Care Act.

These statutes include:[8]

  • National Health Service and Community Care Act 1990
  • National Assistance Act 1948
  • Health Services and Public Health Act 1968
  • Chronically Sick and Disabled Persons Act 1970 (but only as it relates to adults).

From 1 April 2015, access to care and support for adults is via an assessment under section 9 of the Care Act 2014.

The principle of well-being

In exercising any function under the Care Act, the authority must promote the 'well-being' of the individual. The term 'well-being' is defined in the Act as well-being in relation to any of a nine specific outcomes:[9]

  • personal dignity
  • physical and mental health and emotional well-being
  • protection from abuse and neglect
  • control by the individual over day to day life
  • participation in work, education, training or recreation
  • social and economic well-being
  • domestic, family and personal relationships
  • the suitability of living accommodation
  • the individual's contribution to society.

No single outcome is more important than any other, and outcomes will be prioritised differently depending on the individual's circumstances.[10]

Information and advice

A local authority must provide information and advice about care and support services in its area.[11]

Information and advice must cover:

  • the type and range of care and support services available to local people
  • how to access care and support
  • financial implications of accessing care/support
  • where to get independent financial advice about care/support
  • how to raise concerns about the safety and/or well-being of an adult who has care/support needs.

Information and advice must be accessible to and proportionate to the needs of those who may require it. Information about the assessment process must be given, prior to the assessment date if possible, to anyone who requests an assessment.[12]

Duty to assess

Where a local authority becomes aware that an adult may have care and support needs, it must carry out a 'needs assessment'.[13]

This duty applies regardless of what the authority may think the adult's needs are, and regardless of the adult's financial resources, or of any support they are currently receiving from a carer.[14] This creates a low threshold at which the duty to assess is triggered.

Where the adult's needs reduce their 'well-being', (see above)  the assessment must look at how providing care and support could improve this.[15] The authority must also consider whether the adult's needs, such as needs concerning the suitability of their accommodation, have wider consequences for their well-being, even if the adult hasn't mentioned them.[16]

Regard must be had to:[17]

  • the adult's views, wishes and feelings
  • preventing or delaying the development of care/support needs
  • involving the adult in the decision-making process
  • balancing the adult's well-being with that of anyone (including a child) who is caring for her/him.

The adult is considered to be the person who is the best placed to judge her/his well-being and must therefore be be involved in the process, along with her/his carer where this applies. Social services must also involve any other person at the adult's request, and where the adult lacks capacity to make such a request, then social services should involve any person who they believe is interested in the adult's welfare.

Purpose and process of needs assessment

The purpose of a needs assessment is to identify an adult's needs and how they impact on their well-being, and the outcomes they want to achieve. To do this the assessment must consider what outcomes the adult is unable to achieve because of their needs. The decision as to what care and support social services will provide is based on whether the assessed needs meet the eligibility criteria - see the page Eligibility for Care Act 2014 support for details.

A local authority should carry out an assessment in a way which:[18]

  • is appropriate and proportionate to the circumstances of the individual
  • ensures the individual is able to participate fully in the process.

Where the adult has the capacity to 'fully assess and reflect their own needs', that adult must be offered a 'supported self-assessment' in which the adult completes the assessment form jointly with the authority.[19] The authority should give the person any information it holds on them so that s/he has a full picture of their own care and support history and is equipped with the same information an assessor would have.

If the adult does not want to self-assess, s/he can be assessed in any other way that is reasonable in the circumstances.[20]

An adult can refuse an assessment. A subsequent request from the adult will trigger the duty to assess afresh.[21] However, the authority must carry out an assessment if the adult:

  • lacks capacity and the authority is satisfied that carrying out an assessment is in her/his best interest, or
  • is at risk of abuse or neglect.

A written record of the assessment must be given to the adult, and to any other person on the request of that adult.[22]

Independent advocates

Where the person being assessed needs additional support because they would otherwise have 'substantial difficulty' understanding and participating fully in the process, the authority must arrange for an 'independent advocate' to represent and support them. In a case where a local authority failed to provide an independent advocate to a very vulnerable person, the assessment was held to be unlawful as the client had no means of influencing the outcome of the assessment.[23]

Transition to adulthood

The primary aim of the Care Act is to reform the law in relation to adult social care. However, the Act makes provision for three circumstances where an assessment may be made that relates to a child or young person: [24]

  • a 'child's needs assessment' must be made if a disabled child is likely to have care/support needs after becoming 18, and if the assessment would be of 'significant benefit' to the child
  • a 'child's carer's assessment' must be made if the carer(s) of a disabled child is likely to need support after the child turns 18, and if the assessment would be of 'significant benefit' to the carer
  • a 'young carer's assessment' must be made if a young carer is likely to need support after turning 18, and if the assessment would be of 'significant benefit' to the young carer.

An authority must give reasons if it refuses to carry out one of the assessments above. Young carers and carers of disabled children also have rights to assessment and support under other legislation, for example, the Children Act 1989, which are not removed by the Care Act 2014.

Carers

Part 1 of the Care Act also makes provision for supporting carers. Many adults with care and support needs are cared for by a family member, friend or neighbour. (See Transition to adulthood above for information on child carers and adults caring for children). The ability of such informal carers to provide care is determined partly by the care and support available to the adult they care for, and partly by the support available to the carer her/himself.

A carer may request a carer's assessment, or the authority should carry out an assessment where a carer appears to have a need for support.[25] The purpose of the assessment is to determine what support the carer may need. The duty to assess a carer rests with the local authority responsible for the adult in need.

The carer's assessment must consider the:

  • ability and willingness of the carer to continue providing care, both now and in the future
  • impact of caring on the carer's well-being
  • outcomes the carer wishes to achieve in her/his day-to-day life.

The decision as to whether and what support will be provided to a carer depends upon her/his needs satisfying the eligibility criteria.[26] The criteria for carers focus on the extent to which their caring role prevents them from doing certain things (for example working or household activities), or puts their health at significant risk. If an authority decides to meet a carer's needs through the provision of services, it must draw up a support plan, on similar lines to the care and support plan for an adult with needs (see Care and support planning above).

The type of service that may be particularly relevant to carers includes respite care, help with domestic tasks or a nightsitter service.

A local authority can charge for support services, but may not charge the carer where it decides to meet the carer's needs by providing care/support to the adult in need.[27]

Transitional provisions

Adults who are already receiving 'community care' services under previous legislation (such as the National Assistance Act 1948) on 1 April 2015 will continue to receive services but must have their needs reviewed by 1 April 2016.[28] In one case, the High Court held that the 1948 Act ceased to apply following a review of services under transitional provisions, and was replaced by the Care Act 2014.[29] If the review deadline is not met, an adult must be treated as having eligible needs under the Care Act and must have those needs met until the review is completed.

Wales

The information on this page applies only to England. Go to Shelter Cymru for information relating to Wales.

[1] s.2 Care Act 2014; see also Care and Support (Preventing Needs for Care and Support) Regulations 2014 SI 2014/2673 for information on charging for prevention measures.

[2] s.3(5) Care Act 2014.

[3] s.8 Care Act 2014.

[4] R (on the application of M) v Slough BC [2008] UKHL 52; R (on the application of Wahid) v Tower Hamlets LBC [2002] EWCA Civ.

[5] R (on the application of SG) v Haringey LBC [2015] EWHC 2579 (Admin); R (on the application of GS) v Camden LBC [2016] EWHC 1762 (Admin).

[6] R (on the application of SL) v Westminster CC [2013] UKSC 27.

[7] R (on the application of SG) v Haringey LBC [2015] EWHC 2579 (Admin).

[8] Care Act 2014 and Children and Families Act 2014 (Consequential amendments) Order 2015 SI 2015/914; see also the list at Annex I, Care and Support Statutory Guidance, October 2014.

[9] s.1(2) Care Act 2014; chapter 1 Care and Support Statutory Guidance, October 2014.

[10] Paras 1.1 and 1.6 Care and Support Statutory Guidance, October 2014; R (on the application of Davey) v Oxfordshire CC [2017] EWCA Civ 1308.

[11] s.4 Care Act 2014.

[12] ss. 3 and 4 Care Act 2014.

[13] s.9 Care Act 2014; para 6.13 Care and Support Statutory Guidance, October 2014.9

[14] s.9(3) Care Act 2014; para 6.15 Care and Support Statutory Guidance, October 2014.

[15] s.9(4)(c) Care Act 2014.

[16] para 6.14 Care and Support Statutory Guidance, October 2014.

[17] s.1(3) Care Act 2014; reg 4 Care and Support (Assessment) Regulations 2014 SI 2014/2827; para 1.14 Care and Support Statutory Guidance, October 2014; R (on the application of JF) v Merton LBC [2017] EWHC 1519 (Admin).

[18] reg 3 Care and Support (Assessment) Regulations 2014/2827; paras 6.3 and 6.35 - 6.43 Care and Support Statutory Guidance, October 2014.

[19] reg. 2 Care and Support (Assessment) Regulations 2014/2827; paras 6.44 – 6.53 Care and Support Statutory Guidance, October 2014.

[20] See para 6.3 Care and Support Statutory Guidance, October 2014 for more on proportionate assessment.

[21] s.11 Care Act 2014.

[22] s.12(3) Care Act 2014.

[23] s.67 Care Act 2014; Care and Support (Independent Advocacy Support) Regulations 2014 SI 2014/2824; para 6.33 and chapter 7 Care and Support Statutory Guidance, October 2014;  R (on the application of SG) v Haringey LBC and Secretary of State for the Home Department (Interested Party) [2015] EWHC 2579 (Admin).

[24] ss. 59 to 64 Care Act 2014.

[25] s.10 Care Act 2014, replacing the previous requirements in s.1(1) Carers (Recognition and Services) Act 1995 and s.1 Carers and Disabled Children Act 2000, both now disapplied in England along with the Carers (Equal Opportunities) Act 2004 by the Care Act 2014 and Children and Families Act (Consequential Amendments) Order 2015 SI 2015/914.

[26] reg. 3 Care and Support (Eligibility Criteria) Regulations 2014 SI 2015/313.

[27] s.14(3) Care Act 2014.

[28] Care Act 2014 (Transitional Provision) Order 2015 SI 2015/995.

[29] R (on the application of SG) v Haringey LBC and Secretary of State for the Home Department (Interested Party) [2015] EWHC 2579 (Admin).

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