It’s Care Act Eve (The Night Before Care Act?) and time to focus on the good the new legislation may bring.
Yes, there’s not enough new money, with some councils issuing judicial review proceedings against the Secretary of State as a result. Yes, there hasn’t been enough time to prepare; Luke Clements has highlighted that there was a three year implementation period for the NHS and Community Care Act 1990, whereas the Care Act comes into force less than six months since the final guidance was published. So the world will not magically become a better place for people with needs for care and support overnight. However there are undoubtedly aspects of the new law which everyone interested in the rights of disabled people and carers must surely welcome. In the spirit of an earlier post on the Children and Families Act 2014, here are my top five changes:
- The well-being duty.The Care Act begins with what the guidance describes as a ‘principled approach‘ to adult social care in section 1. The precise words bear close consideration: ‘The general duty of a local authority, in exercising a function under this Part in the case of an individual, is to promote that individual’s well-being’. As the guidance highlights, the involves local authorities actively seeking to improve the well-being of disabled people and carers in everything they do under the Care Act. Moreover ‘well-being’ is very broadly defined; the first aspect mentioned in section 1(2) is ‘personal dignity‘ and the list includes ‘control by the individual over day-to-day life‘ and ‘participation in work, education, training or recreation‘. It is clear from section 1(3) that judgments on well-being are subjective; local authorities must have regard to ‘the importance of beginning with the assumption that the individual is best-placed to judge the individual’s well-being‘. The guidance is perhaps somewhat ambitious in suggesting that the well-being duty effectively incorporates Article 19 of the UN Convention on the Rights of Persons with Disabilities, but it certainly strongly points local authorities in the direction of that obligation. If the spirit of the duty is adopted by local authorities then this will be a game changer in the way care and support is provided.
- Advocacy. If the well-being duty is the major change of principle, the advocacy duties might lead to the most significant change in practice. Section 67 requires independent advocates to be appointed at all stages in the care and support process where a disabled person or carer would have ‘substantial difficulty‘ engaging in the process and there is no ‘appropriate person‘ to represent and support them – note that the disabled person or carer can object to a suggested ‘appropriate person‘ and this should be respected. Section 68 creates a parallel duty to appoint advocates during safeguarding enquiries and reviews. The rights and duties of independent advocates are set out in the extensive Advocacy Regulations. Although there are some curious features of the regulations – should an independent advocate really be reporting to the local authority when things go wrong in the care and support process? – they plainly give advocates significant status and power in the care and support process. Many people will of course be entitled to both a Care Act advocate and an IMCA under the Mental Capacity Act 2005, and thankfully the guidance confirms that this can be the same person as long as they are qualified to take on both roles. The main issue seems likely be be under-supply of Care Act advocacy; a recent survey of providers found none who were confident that sufficient funding would be made available to meet the advocacy duty. Let’s hope this has changed in the past few weeks.
- Rights for carers. This one is for Mark Neary, who I’ve been promising for some time that I would try to show that the Care Act does something really significant for carers. The big news is section 20, which for the first time creates an express statutory duty to meet carer’s eligible needs. Previously there was a right to an assessment for carers, but no clear right to a service. Of course everything won’t suddenly be rosy for carers – for example local authorities are entitled to charge for support to carers under section 14, although the guidance discourages this (charging carers is described in the guidance as a ‘false economy’). However there is now an obvious point to carer’s assessments, not least because a carer may be entitled to a service in their own right even if the disabled person doesn’t have eligible needs. Note also that there is no requirement for carers to be providing ‘regular’ or ‘substantial’ care – any level of informal care opens the door to an assessment and support for a carer’s eligible needs.
- National eligibility criteria. Adios the ‘FACS bands’ – no more ‘critical‘, ‘substantial‘, ‘moderate‘ or ‘low‘. Instead eligibility for both disabled people and carers is governed by the criteria set out in the Eligibility Criteria Regulations. The link is to a previous post where I’ve set out why I think the eligibility threshold for disabled people is set significantly lower than the current ‘substantial‘ band. Similarly for carers, the bar is not set too high – the carer has to be providing ‘necessary care‘ and there has to be a ‘significant impact‘ on their well-being, but many carers will meet these and the other tests in the regulations. So in my view many more people will have a right to have their needs met under the new scheme than the present scheme. This will be most obvious in the handful of ‘critical only’ authorities (Northumberland, West Berkshire, Wokingham – any others?) but may well also be the case in the many other areas currently operating a ‘substantial‘ threshold. The early case law will make clear whether I’m right about this.
- The extension of the Human Rights Act 1998 to non-state care providers. This is a change which has not had anything like the publicity it deserves. Section 73 puts paid to the long-running debate about whether private and voluntary sector care providers are caught by the HRA 1998. It is now clear that all registered care providers providing care arranged or funded by a local authority are exercising ‘functions of a public nature‘ and must respect the incorporated ECHR rights. This means, for example, that private care providers will have to comply with the substantive and procedural obligations imposed by Article 8 ECHR (right to respect for private and family life and the home) in reorganising or closing services. It also potentially makes private providers liable for breaches of Article 5 ECHR occasioned by an unauthorised deprivation of liberty – something which should give charities and companies providing care serious pause for thought after the Supreme Court’s judgment in Cheshire West. What section 73 means for disabled people and carers is that their human rights must be respected regardless of the nature of the body actually providing them with care or support that is funded or arranged by the local authority. In the contracted-out world of social care this provides essential clarification and human rights protection.
So that’s my starter for five. There are many other candidates, please feel free to highlight any I’ve missed in the comments below. It’s important to note that under the transitional order the new scheme will apply from tomorrow (1 April) to new entrants to the system, with all existing recipients of social care to be reassessed or reviewed under the Care Act by April 2016. This is the date the new charging scheme is supposed to take effect, including at present an entitlement to free lifetime care for anyone who has an eligible need before their 25th birthday. Let’s hope that the swingeing cuts to local authority budgets don’t prevent the Care Act from realising at least some of its huge potential by that date.
For more on the Care Act, the website of Professor Luke Clements is an absolutely indispensible resource – check out in particular the updated overview briefing. This will have to keep us going until the next edition of Community Care and the Law comes out. There are also a huge range of resources produced by SCIE, the most recent on transition from children’s to adult services, which might merit a blog post of its own…