Care Act 2014 – first thoughts on eligibility – a ‘moderate’ success?

by stevebroach

The regulations and guidance for the Care Act 2014 were published at the back end of last week. Taken with the government’s response to the consultation (.pdf) and impact assessment (.pdf) they easily fill a lever arch file. So much for our more accessible new system of adult social care.

Rather than make a frontal assault on this mountain of paper, I thought I’d creep up on it and take a few of the key themes by surprise – starting with eligibility (disabled people – carers to follow). My conclusion on this central issue is that although government has intended to make the new system roughly as restrictive as the present system, I’m not at all sure they have succeeded. I read the new scheme as being significantly more generous than the present ‘substantial’ band operated as the eligibility floor by the vast majority of local authorities at present. It may therefore be that the deluge of protests when the tweaked eligibility regulations were published, although fully justified, was somewhat misplaced.

When the Care Act comes in to force next April, eligibility for adult social care will be governed by the Care and Support Eligibility Criteria Regulations 2014 (see p14 of the .pdf), made under section 13 of the Act.

Taking the Act first, section 13(1) requires that ‘Where a local authority is satisfied on the basis of a needs… assessment that an adult has needs for care and support…, it must determine whether any of the needs meet the eligibility criteria’ – so there must be a decision on eligibility in each case.

Sub-section 3 then requires the local authority to consider what can be done to meet the needs of disabled people and to ascertain whether they are ordinarily resident in the local authority’s area – so triggering the duty to meet their needs in section 18.

Sub-section 7 provides that needs meet the eligibility criteria if ‘they are of a description specified in regulations’ – so the regulations are all important, as the Act itself is silent as to what the eligibility criteria might be.

Turning then to the regulations – Regulation 2 deals with disabled people’s eligibility. It imposes three requirements for a need to be eligible for support:

  1. It must arise from or be related to a physical or mental impairment or illness – unlikely to be controversial in most cases but may be a problem for some older people whose needs result from their advanced age.
  2. It must lead (in combination with any other needs) to the person being ‘unable’ to achieve two or more of the specified outcomes listed below (but ‘unable’ doesn’t really mean unable, as explained below).
  3. These outcomes not being achieved must have a significant impact on the adult’s well-being.

So 2 and 3 are the issue. Taking them in turn:

  • The list of outcomes is very broadly drawn. It covers managing and maintaining nutrition; maintaining personal hygiene; managing toilet needs; being appropriately clothed; being able to make use of the home safely; maintaining a habitable home environment; developing and maintaining family or other personal relationships; accessing and engaging in work, training, education or volunteering; making use of necessary facilities or services in the local community including public transport, and recreational facilities or services; and carrying out any caring responsibilities the adult has for a child.
  • Importantly, the term ‘unable’ in relation to the achievement of the specified outcomes does not have anything like its ordinary meaning. Under regulation 2(3), a person is ‘unable’ to achieve an outcome if they need assistance to achieve it, if they can achieve it without assistance but doing so causes them ‘significant pain, distress or anxiety’ or is likely to endanger the health and safety of the adult or another person – or even if it simply takes them ‘significantly longer’ to achieve the outcome than would ‘normally be expected’ (answers on a postcard as to how that will be measured). As such the real question is whether the disabled person experiences significant difficulties in relation to the areas of life identified in the specified outcomes – if yes, they will be eligible for support to achieve those outcomes.
  • There will be some cases where the person’s needs result in them being ‘unable’ to achieve only one of these outcomes – for example, as case like Mrs McDonald’s where the primary and perhaps sole need relates to night-time toileting. In these rare cases the local authority may have to exercise its powers to go beyond the eligibility framework in order to provide services which are consistent with disabled people’s human rights. However – most disabled people who have difficulties maintaining personal hygiene will also need help with dressing. Many disabled people who experience barriers to work will also need help to develop personal relationships (NB – the inclusion of ‘developing’ relationships as an eligible outcome is a big win for the National Autistic Society’s ‘Careless’ campaign). So in reality I’m not sure (despite the modelling that has been apparently been done) how much of an additional hurdle is created by requiring difficulties in achieving two or more outcomes rather than just one.

So how does this compare to the present picture? Under the current statutory guidance, Prioritising Need, local authorities can set their eligibility threshold at one of four bands – ‘critical’, ‘substantial’, ‘moderate’ and ‘low’. Most local authorities meet ‘critical’ and ‘substantial’ need – indeed the government’s stated intention is for the national eligibility threshold to mirror ‘substantial’.

So in order to see if this has been achieved, we need to consider the current ‘moderate’ band. The ‘moderate’ needs are as follows:

  • There is, or will be, an inability to carry out several personal care or domestic routines;
  • Involvement in several aspects of work, education or learning cannot or will not be
  • Several social support systems and relationships cannot or will not be sustained; and/or
  • several family and other social roles and responsibilities cannot or will not be undertaken.

It seems to me that a person with any of these levels of need would be likely to be eligible for care and support under the new system. Take personal care – to have ‘moderate’ needs at present you must be unable to carry out ‘several personal care or domestic routines’. So under the new system this would relate to the outcomes of ‘maintaining personal hygiene’, ‘managing toileting needs’, ‘maintaining a habitable home environment’ etc. ‘Several aspects of work, education or learning’  in the ‘moderate’ band translates to ‘accessing and engaging in work, training, education or volunteering’ – although under the new system you just have to show difficulty in achieving this outcome, not that ‘several aspects…cannot or will not be sustained’. ‘Social support systems and relationships is equivalent to ‘developing and maintaining family or other personal relationships’ – although again, there is no need to show that ‘several’ systems and relationships ‘cannot or will not be sustained’. This outcome would also cover ‘several family and other social roles and responsibilities cannot or will not be undertaken’ – although here we also have the specific new outcome in relation to disabled parents, which is very welcome.

So try as I might, I am struggling to see how a person properly assessed as having ‘moderate’ needs at present would not be deemed eligible following a proper assessment under the new system – except in the rare case where they only have one such need. In fact, it may be that many people properly assessed at present as having ‘low’ needs will also be eligible under the new system. For example, the ‘low’ personal care need is ‘there is, or will be, an inability to carry out one or two personal care or domestic routines’. If the two personal care routines which can’t be carried out are ‘maintaining personal hygiene’ and ‘managing toileting needs’ then that person’s low need will be eligible – assuming the other tests are met.

It is important to note that under ‘Prioritising Need’ (and its predecessor, Fair Access to Care Services), there is no qualification on the terms ‘unable’ or ‘cannot be sustained’ – they have the ordinary English meaning, which is a much stricter meaning that the definition in the Care Act regulations. This is another pointer that eligibility under the new system should be more generous than the existing system – if operated properly in accordance with the regulations.

This all assumes that I am correct that the main additional requirement, being that the ‘inability’ to achieve the outcome will have a ‘significant impact on the adult’s well-being’, is not a real additional barrier in most cases. This in turn assumes that there will be proper and accurate assessments of disabled people which are faithful to the eligibility criteria – a major assumption. I will turn to the new assessment duty in a later post.

What does the new Care Act guidance add to this picture? Assessment and eligibility are dealt with under chapter 6, with consideration of eligibility from 6.100, p96. Key points include:

  • A reminder that local authorities can meet non-eligible needs if they choose to do so (6.100) – though in the current financial climate this is more theoretical than real.
  • ‘Inability’ to achieve an outcome includes a situation where prompting is required; 6.106.
  • Examples of circumstances where each outcome is not being achieved are given at 6.107. As an example, ‘maintaining a habitable home environment’ is said to involve consideration of ‘whether the condition of the adult’s home is sufficiently clean and maintained to be safe. A habitable home is safe and has essential amenities.’ We will no doubt see if the courts agree with this definition of ‘habitable’ in due course.
  • Importantly, ‘significant impact on well-being’ should be considered cumulatively in relation to all the outcomes (6.109), increasing the likelihood that this threshold will be reached in any given case. The term ‘well-being’ is of course defined in section 1 of the Care Act and will be the subject of a future blog post as it is centrally important to the whole Care Act scheme.
  • ‘Significant’ is not defined in the regulations and so has its everyday meaning; 6.110. Unhelpfully, the guidance does not tell us what the Secretary of State thinks that meaning is. I would suggest ‘significant’ means ‘more than minor or trivial’ – so not a particularly high threshold.
  • 6.114 contains case study examples – the case study of ‘Dave Brown’ is an adult with autism who spends a lot of time online, is engaged in work and ‘has access to those personal relationships that he considers essential’. As such ‘Dave’ is not eligible because the difficulties he is experiencing do not have a significant effect on his well-being. This may well be correct – however it seems to me that a person with autism who was experiencing only slightly greater difficulties than ‘Dave’ would have to be deemed eligible under the new scheme – note work’ and ‘personal relationships’ meet the required two separate outcomes.
  • The eligibility decision has to discount any care that may be provided to the disabled person, looking at what needs would be if no support provided; 6.119.

So after consideration of the new scheme on eligibility I am left hopeful that, despite the apparent intention, the regulations will create a broader eligibility for adult social care than the present ‘substantial’ band. If this doesn’t prove to be the case in practice, disabled people whose needs are deemed ineligible will be able to seek redress through an application for judicial review if there is a legal issue in play – as there undoubtedly will be in many of the earlier cases.

More to follow when I’ve had a go at approaching the mountain of regulations and guidance from a different route.