Eligibility for Care Act support

The national eligibility criteria set a minimum threshold at which social services must meet a need for care and support. The threshold is based on identifying how a person's needs affect their ability to achieve relevant outcomes, and how this impacts on their well-being. Social services has the power to also meet needs that fall below the threshold.

Prior to 1 April 2015, eligibility for care and support under community care legislation was determined through the 'Fair Access to Care Services' (FACS) framework. FACS enabled each authority to decide the level of need – critical, substantial, moderate or low – at which it would provide community care services.

The Care Act 2014 introduces the National Minimum Eligibility Criteria (NMEC), which apply to all authorities from 1 April 2015. Care and support needs are identified through the assessment process.

Care and support needs are 'eligible' if they:[1]

• arise from or are related to a physical or mental illness or impairment

• result in the adult being unable to achieve two or more specified outcomes (see list below) and, as a result,

• have a significant impact on the adult's well-being

The term 'significant' is not defined and should be given its everyday meaning.[2] To decide whether there is a significant impact on well-being, the authority must consider the impact a failure to meet needs would have on the following outcomes:

The outcomes are:[3]

• managing or maintaining nutrition, personal hygiene or toilet needs

• being appropriately clothed

• being safe at home and maintaining a habitable environment – this includes being able to sustain occupancy of a home and maintain essential amenities[4]

• developing/maintaining family and personal relationships

• accessing and engaging in work, training, education, volunteering or community services or facilities including transport and recreation

• caring for a child

Being unable to achieve an outcome includes having considerable difficulty in achieving it, or only being able to achieve it with assistance.

Where needs fluctuate, the authority should make sure the assessment covers a period that is long enough to allow an accurate decision to be made.

A court may find an eligibility decision to be unlawful if it is one that no reasonable authority would make, based on the assessment of needs. However, a court will be unwilling to interfere in the decision of the authority, as it will judge that the authority is best placed to carry out the process of assessment, and to make the corresponding decision on eligibility.

In one case, the High Court held that when carrying out a needs assessment, the local authority should have taken into account all needs, including those that were being met at the time of the assessment.[5]

The care and support needs (whether eligible or not) of a person subject to immigration control (as defined by section 115 of the Immigration and Asylum Act 1999) may not be met under the Care Act 2014, where their need for care and support has arisen solely because of destitution or because of the physical effects or anticipated physical effects of destitution.[6]

Whether or not an adult has eligible care and support needs, they must be given a copy of the eligibility decision.[7] They must be given information and advice on meeting or reducing any non-eligible needs, and on preventing or delaying the development of needs in the future.

If the adult has any eligible needs, the authority must:

• agree which needs the adults would like the authority to meet (the adult may choose to arrange to meet some needs by arranging services themselves)

• consider how those needs could be met as a preliminary step before developing a care/support plan, and carry out a financial assessment if any of those needs are likely to be met through services which are charged for

• establish whether the ordinary residence requirement  is met. This should not delay the provision of services to meet eligible needs

Where an adult has eligible needs the local authority must meet those needs if the adult is ordinarily resident in the authority's area, or is present in the area and has no settled residence, and the service that would meet the need is one that would be provided free of charge.[8]

Where there is a charge for meeting the eligible needs, the authority must meet those needs if the adult:

• lacks mental capacity to arrange their care/support, and there is nobody authorised to do so on their behalf

• does not have sufficient financial resources according to the financial assessment to pay for necessary services, or their accrued costs exceed the cap on care costs

• has sufficient resources to pay for services to meet their needs, but nonetheless requests the authority to make the arrangements for care/support. This could be because the adult finds making arrangements too complicated, or wants to benefit from the authority's knowledge of local services. Where the authority makes the arrangements, it may charge a fee to do so.[9] This does not affect the fact that the adult is responsible for paying the charges for any service from their resources

An authority may not meet needs which it or another authority has a duty to meet under other legislation, for example, to provide accommodation under the Housing Act 1996.[10] It is also not obliged to meet any needs that are already being met by a carer.[11]

Power to meet needs

The local authority also has a general discretionary power to meet needs. It might exercise this power to, for example, meet eligible needs which appear to be urgent, even if the adult is not resident in its area, or non-eligible needs of a person in its own area.[12]

Next steps

Where the authority has a duty to meet an adult's eligible needs, (or decides to exercise its power to meet them), it must draw up a care and support plan.[13]

If an adult has eligible needs and is ordinarily resident in the area but the authority has no duty to meet the needs, or does not decide to exercise its power to meet them, the authority must:[14]

• give the adult written reasons for its decision, and advice/information as appropriate about how to reduce needs or delay the development of care/support needs in the future where the needs are not eligible

• prepare an independent personal budget for that adult where the needs are eligible