Care and support needs assessment

Local authorities were temporarily given powers to suspend a number of duties under the Care Act 2014 during the coronavirus pandemic. These included duties to carry out and review care and support plans, and meet eligible care needs.[1] These powers were removed from 16 July 2021.[2]

From 1 April 2015, Part 1 of the Care Act 2014 consolidates the existing law relating to adults with care and support needs. 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, as well as meeting 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

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.

Social services must aim to prevent the need for care and support arising or existing needs becoming greater by identifying:[3]

• adults in their area with unmet needs for care/support

• 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 promotes the well-being of adults in its area. For this purpose, the provision of housing accommodation is a health-related provision.[4]

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:[5]

• accommodation in a care home or other premises

• care/support at home

• counselling and social work

• goods and facilities

• information, advice and advocacy

The government has issued guidance aimed at local authorities and those who fund their care via direct payments. The guidance emphasises the need for contingency plans where care assistants are unable to provide care and for considering requests to pay close family members to provide care if deemed necessary.

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 2014 replaced the accommodation duty with a general duty to meet the needs of a person who needs care and support.

As a result, the provision of accommodation under Care Act 2014 is restricted to cases in which the authority 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

• would be 'effectively useless' if the client was homeless

Section 23 of the 2014 Act prevents local authorities from meeting eligible care needs by doing anything that is required under the Housing Act 1996. The High Court held that where a severely disabled person was being provided with care but required suitable alternative accommodation, it was not unlawful for a local authority to meet their housing need by placing them on the waiting list for social housing.[7] In another case, the High Court found that a local authority did not act unlawfully by ending accommodation provided under the Care Act when the person was able to seek assistance under the Housing Act 1996.[8]

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.[9]

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.[10] 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.[11]

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:[12]

• 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 are prioritised differently depending on the individual's circumstances.[13]

A local authority must provide information and advice about care and support services in its area.[14]

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.[15]

Where a local authority becomes aware that an adult may have care and support needs, it must carry out a 'needs assessment'.[16]

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.[17] This creates a low threshold at which the duty to assess is triggered.

Where the adult's needs reduce their 'well-being', the assessment must look at how providing care and support could improve this.[18] 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.[19]

Regard must be had to:[20]

• 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 them

The adult is considered to be the person who is the best placed to judge their well-being and must therefore be be involved in the process, along with their 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.

The purpose of a needs assessment is to identify scope for help and support.

The assessment must consider what outcomes the adult is unable to achieve because of their needs and whether it has a significant effect on their well-being. The decision as to what care and support social services will provide is based on whether the assessed needs meet the eligibility criteria. These criteria can be related to the individual’s immigration status and/or to the nature of their needs.

A local authority should carry out an assessment in a way which:[21]

• is appropriate and proportionate to the circumstances of the individual

• ensures the individual is able to participate fully in the process

In one case, the High Court held that when carrying out an assessment of needs, the local authority should have taken into account all needs, including those that were being met at the time of the assessment.[22]

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.[23] The authority should give the person any information it holds on them so that they have 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, they can be assessed in any other way that is reasonable in the circumstances.[24]

An adult can refuse an assessment. A subsequent request from the adult will trigger the duty to assess afresh.[25] 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 their 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.[26]

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.[27]

The Act makes provision for three circumstances where an assessment may be made that relates to a child or young person: [28]

• 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.

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. 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 themselves.

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.[29] 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 their day-to-day life

The decision as to whether and what support will be provided to a carer depends upon their needs satisfying the eligibility criteria.[30] 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.

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.[31]

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.[32]

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.[33]

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.

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

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:[34]

• 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)

Before 1 April 2015, the National Assistance Act 1948 imposed a broader duty to provide accommodation 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'.[35] People accommodated under the National Assistance Act provisions were entitled to transitional protection until 1 April 2016.[36]

Case law relating to the phrase 'care and attention' in the National Assistance Act 1948 held that the phrase referred to something more than a need for accommodation alone.[37] The principles deriving from those cases apply to the Care Act 2014, so that 'care and support' needs do not include a need for accommodation by itself.[38]

The European Court of Human Rights has held that there was no breach of a service user's article 8 rights where the local authority reassessed her need for 'assistance to use the commode at night' (for which an overnight carer had been provided) to a general need for support at night, which could be met by the provision of incontinence pads and absorbent sheets instead. A local authority has a wide 'margin of appreciation' (ie a certain amount of discretion) when deciding on the best way to ensure article 8 rights are respected and meet assessed need, and may take the cost of each option into account.[39]

In another case, the High Court found that a local authority's failure to provide community care services to a severely disabled woman and her family, despite accepting a duty to do so, was a breach of the right to family life.[40] The court ordered the authority to provide suitable housing and awarded damages on the basis that the protracted delay in doing so had forced the applicant and her family to live in conditions that made any meaningful private or family life virtually impossible. However, it should be noted that the circumstances in this case were very extreme. The claimant and her family were forced to live in conditions that made it impossible for the claimant to manage her own bodily functions and meant that privacy and/or social activity were out of the question.