PI Template

Derbyshire Coalition against the Cuts6th March 2015

Assessments, Eligibilityand the new Care Act: Top Tips

Kate Whittaker Community care solicitor

H&SA Law and Transition for families1Social Care Law Assessments, eligibility and the new Care ActPersonal budgets, the Care Act and the well-being principle

(2) Top tips on assessments, support planning and decisions about what you are eligible forH&SA Law and Transition for families2Social Care Law What is a personal budget?It is about the money that is needed to be able to get the care and support you needHaving a personal budget means you should:- know how much money you have in the budget- be able to spend the money in ways and at times that makes sense to you- know what outcomes are supposed to happen from spending the money on care.H&SA Law and Transition for families3Social Care Law The right to have choice and control about your careThis has been around for a long timeThe law says that assessments and care plans should be person-centred based on how you want to live your life not how someone else says you shouldPeople have been able to get their care as direct payments so they can arrange their own support since 1997Or if you have indirect payments where the council or another organisation looks after the money you are still supposed to be able to have choice and control over how it worksH&SA Law and Transition for familiesThe Care Act 2014 and personal budgetsDefines a (social services) personal budget in law for the first time:An independent personal budget is a statement which specifies what the cost would be to the local authority concerned... of meeting the adults eligible needs for care and support. (Section 28)

No mention of choice and control!Still have to rely on policy and guidance for that.H&SA Law and Transition for familiesThe well-being principle in the Care ActNew fundamental duty in the Care Act (Section 1): in everything a local authority does under the Act: they must promote the well-being of the individual, including:personal dignity and treating you with respectphysical and mental health and emotional well-beingprotection from abuse and neglectcontrol over day-to-day life including care and support and the way in which it is providedparticipation in work, education, training or recreationsocial and economic well-beingdomestic, family and personal relationshipssuitability of living accommodationcontribution to society

H&SA Law and Transition for familiesTop TipsAssessmentsEligibilitySupport planningH&SA Law and Transition for familiesAssessmentsIt should be easy to get an assessment (or a re-assessment) the question is whether it seems like you might be in need of services not whether you will definitely be eligibleThey shouldnt refuse to assess because of whether or not you would have to pay for careIt should normally be a face-to-face assessment not just a self-assessment questionnaireThe assessor might not be a qualified social worker but they must have proper training to understand your needsH&SA Law and Transition for familiesAssessmentsYou can have whoever you want there to support youIf you will have difficulty dealing with the assessment on your own and you want help with this, social services must make sure you can get free help from an independent advocate (new in the Care Act)If social services think you may need help from Health or housing or someone else they must make sure this happens and work jointly with themThe assessor should speak to carers, family or others who can help give information about your needs (if you agree to this)They should also give you a chance to speak to them separately from your carers or family if you want to, and the same for your carers if they want to, about their own needs

H&SA Law and Transition for familiesAssessments - carersBefore the Care Act, carers could request an assessment of their needs as a carer but the local authority only had to do one if the carer was providing a substantial amount of care on a regular basis.Now social services have a duty to do a carers assessment if it appears the carer may have needs for support whether currently or in the future lower testAs with adult needs assessments, financial resources are irrelevant at the assessment stageH&SA Law and Transition for familiesAssessmentsIn the assessment the council has to:consult with youconsult with a carer if appropriateconsider how your needs impact on your well-being and the outcomes you want to achieve in day-to-day life (new in the Care Act)consider whether you would benefit from preventative services, information and advice or other things available in the community (new in the Care Act)try and agree with you (and your carer if needed) about what services should be provided to meet needstell you about the amount of charge you may have to pay for any services that may be providedH&SA Law and Transition for familiesAssessmentsHow long should it take?Older people: Single Assessment Process to commence within 48 hours of initial contact and conclude within a monthOther people: it depends on the circumstances, but the Local Govt Ombudsman (LGO) considered that 3 months for an adaptation assessment was simply unacceptableIf the needs are urgent, a council has a legal power to provide services on a temporary basis until the completion of the assessmentIf there are urgent needs and Health and Social Services are arguing about who is responsible for meeting them, then one must be do it in the meantime until the issues are resolvedIf it appears that you may be at risk of abuse or neglect, the local authority must carry out a safeguarding enquiry and decide with you what action is neededH&SA Law and Transition for familiesAssessmentsEnsure all needs are clearly identified in the assessment - otherwise they will not be funded. Include the lesser needs as well as the more important ones because they can add up and need to be looked at as a whole.Make sure carers needs are identified and met as wellMake sure you emphasise the worst risks that might happen if your needs arent met, and how support is a stitch in time dont just think about how you are on a good day.H&SA Law and Transition for familiesAssessments the recordIts VITAL that everything you discuss in the assessment is recorded get a copy and check it. Ask for missing details to be added.After the assessment there will be a decision about your eligible needs and what support is to be provided and this needs to be made clear on the record tooWith personal budgets/direct payments, it is even more important to get a clear record of everything that has been discussed and agreedH&SA Law and Transition for familiesEligibilityThe assessment should identify all needs: these are the assessed needs but not all will necessarily lead to support being provided, only those that are eligible.The Care Act introduces a new single, national eligibility framework for all LAs previously there were variations between areasThe Care Act says that local authorities should consider meeting non-eligible needs if it will help to prevent them escalating and getting worse.The assessment and decision about support should look at the whole person and how their needs add up.H&SA Law and Transition for familiesEligibility criteriaTo be eligible for support, you must meet three requirements:Your needs must be the result of a physical or mental impairment or illnessAs a result you must be unable to achieve two or more of the outcomes set out in the eligibility criteria, andAs a consequence there is likely to be a significant impact on your well-being

Significant impact means an important effect on your daily life, independence and well-beingH&SA Law and Transition for familiesEligibilityThe outcomes are:-managing and maintaining nutritionMaintaining personal hygieneManaging toilet needsBeing appropriately clothedBeing able to make use of your home safelyMaintaining a habitable home environmentDeveloping and maintaining family or other personal relationshipsAccessing and engaging in work, training, education or volunteeringUsing necessary facilities or services in the community including transport and recreationH&SA Law and Transition for familiesEligibility and help from carersNB the decision about your eligible needs must be carer-blindThis means any help you are getting or could get from carers, whether paid or unpaid, must be ignored when determining whether your needs are eligibleThe assessment should record if there is unpaid help that family or other carers are willing to give, and you agree with thisThis can be taken into account when the authority decide what support they will provideBut not when deciding what your eligible needs are!

H&SA Law and Transition for familiesEligibility Carers needsThere are separate eligibility criteria to decide about whether a carers needs are eligible. They are eligible if:The needs arise as a consequence of providing necessary care for an adultThe effect of the carers needs is that:their physical or mental health is at risk of deterioratingthey are unable to achieve one or more outcomes including carrying out caring responsibilities for others, maintaining a habitable home environment, maintaining nutrition, family or personal relationships, work, training or volunteering, recreation or using local facilities or servicesAs a consequence there is likely to be a significant impact on the carers well-beingIf support is needed for a carer, it may be provided as:support given to the carer, eg direct payments to get a cleanersupport given to you eg short breaks

H&SA Law and Transition for familiesSupport planningThis is where you have the opportunity to exercise choice and control there may be many different ways of meeting a particular needBut remember, it all needs to tie in with the process of the council deciding what you are eligible forYou may have a preferred way of meeting a need, but if the council has a cheaper way that it says can meet the need adequately, it can limit the personal budget it provides to the cost of the cheaper wayIts important to question and check how they say the need can be met for the money dont just accept it if you disagree that it would work. Think again about the risks that might happen if its not met properly tell them.H&SA Law and Transition for familiesCare and support plan what it must include:a note of all your needs identified during assessmentdetails of which ones are eligible needsthe needs that the authority is going to meet, and how it will do this may be partly or all by a direct paymentagreed outcomes you want to achieve and how support will be organised to meet themsupport which carers and others are willing and able to provide or make clear if they or you are not willingfor a carer, their desired outcomes about providing care, work, education and recreation and how support will be organised to help meet them may be by direct payments or other support to the carer or support to youthe personal budget, including details of any financial contributions you will need to paydetails of what can be done to reduce or prevent your needs getting worseamount and frequency of any direct payments you will get

H&SA Law and Transition for familiesSupport planning direct paymentsDirect payments from a local authority may be paid to:-an adult (over 16) with needs arising from age, disability or other factorsthe parents/carers of a disabled child, to meet the childs needs a carer (over 16), to meet their own needs as a carera suitable person, to manage on behalf of an individual who lacks mental capacity to manage DPs themselves; the suitable person may be:-the individuals financial or welfare deputy or attorneya family member or other close person.H&SA Law and Transition for familiesSupport planning direct payments

The amount of a direct payment must be enough to cover all the associated costs, egrecruitment costs, payroll services, CRB checks on employeesNI, VAT, stat holiday pay, sick pay, maternity payemployers liability insurance, public liability insurancestart-up costs, trainingbrokerage/advocacy?Hourly rate enough to get (and keep) suitably skilled staffRight to decline DPs, or use a mixture of DPs and direct servicesMake sure you get clear information about what is involved in managing a personal budget and what support you can get, both at the start and if there are difficulties

H&SA Law and Transition for familiesSupport planning

Action:Your support plan must be in writing and address all the how, who, what and when and be clearHaving direct payments makes no difference - the support plan and record of assessment must still cover everythingIf your support or services change, check that a re-assessment of needs has been completed- family carers should be consulted over this.If a re-assessment has not been completed, challenge any cuts as it is unlawful to reduce support or services without this

H&SA Law and Transition for familiesSupport planning what should you get?

Local authorities cant have blanket policies such as:We dont provide help with bathing without a doctors noteWe dont provide help with shopping and cleaningWe dont provide travel help anymoreWe dont provide evening/weekend servicesThey cant impose an upper limit on help, e.g. If you need 24-hour care then it will have to be funded by HealthThe weekly personal budget cant be more than the cost of a care homeH&SA Law and Transition for familiesSupport planning what should you get?

Local authorities must adjust provision to meet your needs not the other way round. Disabled people should be able to choose where they live on an equal basis with other peopleLocal authorities cannot say:We dont have anything suitable, so you will either have to use a service outside our area or you will have to arrange this yourself using a personal budgetWe have funded you in an out of area care home and you are settled and happy there but now you must come backAlthough there is an ideal service for you (such as a respite care home) we are not going to fund it because it is out of areaH&SA Law and Transition for familiesSupport planning

If nothing suitable is available locally for you, ask for evidence that your council is taking steps to arrange or commission a new service, such as from a charity or other independent providerAsk how they will adjust provision to meet your needs.If your relative lacks capacity to decide where they live ask for a best interests meeting. Family carers must be included in this meeting and the planning for what is best.H&SA Law and Transition for familiesSupport planning - Allocation or funding panels

The panel should not simply refuse to approve proposals put forward by the social worker who has done a detailed assessment of your needs, because of the costAction:Request a written response from the panel which details how the council will fulfil its duty to meet the assessed need.If the panels decision is unfair, complain (see below)H&SA Law and Transition for familiesDealing with problems

If you believe that the Council has acted unlawfully, you should make a formal complaint to try to sort things outUnder the Care Act there is a new appeals process about assessments and care decisionsPeople will be entitled to have help from an independent advocate if they need itAsk for a copy of the Council complaints procedure and make sure you follow itA template letter to help you structure your complaint is available from:www.lukeclements.co.uk/resources/index.html(click on precedent complaint letter)H&SA Law and Transition for familiesDealing with problems

Get advice and help from people and organisations close to you like:Your social workerYour service providerA local disabled peoples organisation (DPO) or other charityAn advocateYour local councillor or MPAn independent support planner or brokerOther disabled people/families who have been through it peer support or networks through charitiesH&SA Law and Transition for familiesDealing with problems

Different people can help with different things, such as:Explaining clearly what is happening about your support and giving you the details in writingWriting a letter of support for youHelping you make a complaintPutting you in touch with other people who have faced similar issuesPutting you in touch with other specialist help such as solicitorsHelping you set up your care arrangements, e.g. using a personal budgetH&SA Law and Transition for familiesGet more information and individual advice

Organisations:Community Legal Service: Website to find a solicitor, categories include community care, education and public law: www.legaladviserfinder.justice.gov.uk/AdviserSearch.doDisability Law Service: Provides telephone or email advice on community care law. Free to disabled people and their family carers.www.dls.org.ukTel: 020 77919800 e-mail:advice@dls.org.ukNational Autistic Society: The National Autistic Society Community Care Service offers advice and information about Community Care www.autism.org.ukTel:0808 8004104 Emailcommunitycare@nas.org.ukH&SA Law and Transition for familiesDealing with problems

Resources:Clear and concise guide about getting and maintaining a good social care support package has been produced for families of individuals with severe challenging behaviour but applies across the boardwww.challengingbehaviour.org.uk/learning-disability-files/19_Ten-top-tips.pdfGuide to carers rights which is a good overview about health and social care assessments and eligibility generally: www.carersnet.org.uk/acts/luke.pdf Detailed guide to legal duties owed to disabled people and about how to challenge cuts/failures: www.centreforwelfarereform.org/library/by-az/using-the-law-to-fight-the-cuts.htmlDetailed but user-friendly guide to challenging cuts/changes to social care packages:www.scope.org.uk/help-and-information/publications/cuts-or-changes-your-care-package

H&SA Law and Transition for families