Statutory guidance

Care and support statutory guidance

Updated 5 October 2023

Using the Care Act guidance

This publication is currently under review

The Health and Care Act 2022 revoked Schedule 3 and amended Section 74 of the Care Act 2014 on 1 July 2022. This means that certain parts of this guidance are out of date and in the process of being updated to reflect the relevant statutory changes.

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General responsibilities and universal services

This section includes chapters on:

1. Promoting wellbeing 2. Preventing, reducing or delaying needs 3. Information and advice 4. Market shaping and commissioning of adult care and support 5. Managing provider failure and other service interruptions

1. Promoting wellbeing

This chapter provides guidance on section 1 of the Care Act 2014 and covers:

• definition of wellbeing
• promoting wellbeing
• wellbeing throughout the Care Act

1.1 The core purpose of adult care and support is to help people to achieve the outcomes that matter to them in their life. Throughout this guidance document, the different chapters set out how a local authority should go about performing its care and support responsibilities. Underpinning all of these individual ‘care and support functions’ (that is, any process, activity or broader responsibility that the local authority performs) is the need to ensure that doing so focuses on the needs and goals of the person concerned.

1.2 Local authorities must promote wellbeing when carrying out any of their care and support functions in respect of a person. This may sometimes be referred to as ‘the wellbeing principle’ because it is a guiding principle that puts wellbeing at the heart of care and support.

1.3 The wellbeing principle applies in all cases where a local authority is carrying out a care and support function, or making a decision, in relation to a person. For this reason it is referred to throughout this guidance. It applies equally to adults with care and support needs and their carers ^{[footnote 1]}.

1.4 In some specific circumstances, it also applies to children, their carers and to young carers when they are subject to transition assessments (see chapter 16 on transition to adult care and support).

Definition of wellbeing

1.5 ‘Wellbeing’ is a broad concept, and it is described as relating to the following areas in particular:

• personal dignity (including treatment of the individual with respect)
• physical and mental health and emotional wellbeing
• protection from abuse and neglect
• control by the individual over day-to-day life (including over care and support provided and the way it is provided)
• participation in work, education, training or recreation
• social and economic wellbeing
• domestic, family and personal
• suitability of living accommodation
• the individual’s contribution to society

1.6 The individual aspects of wellbeing or outcomes above are those which are set out in the Care Act, and are most relevant to people with care and support needs and carers. There is no hierarchy, and all should be considered of equal importance when considering ‘wellbeing’ in the round.

Promoting wellbeing

1.7 Promoting wellbeing involves actively seeking improvements in the aspects of wellbeing set out above when carrying out a care and support function in relation to an individual at any stage of the process from the provision of information and advice to reviewing a care and support plan. Wellbeing covers an intentionally broad range of the aspects of a person’s life and will encompass a wide variety of specific considerations depending on the individual.

1.8 A local authority can promote a person’s wellbeing in many ways. How this happens will depend on the circumstances, including the person’s needs, goals and wishes, and how these impact on their wellbeing. There is no set approach – a local authority should consider each case on its own merits, consider what the person wants to achieve, and how the action which the local authority is taking may affect the wellbeing of the individual.

1.9 The Act therefore signifies a shift from existing duties on local authorities to provide particular services, to the concept of ‘meeting needs’ (set out in sections 8 and 18 to 20 of the Act). This is the core legal entitlement for adults to care and support, establishing one clear and consistent set of duties and power for all people who need care and support.

1.10 The concept of meeting needs recognises that everyone’s needs are different and personal to them. Local authorities must consider how to meet each person’s specific needs rather than simply considering what service they will fit into. The concept of meeting needs also recognises that modern care and support can be provided in any number of ways, with new models emerging all the time, rather than the previous legislation which focuses primarily on traditional models of residential and domiciliary care.

1.11 Whenever a local authority carries out any care and support functions relating to an individual, it must act to promote wellbeing – and it should consider all of the aspects above in looking at how to meet a person’s needs and support them to achieve their desired outcomes. However, in individual cases, it is likely that some aspects of wellbeing will be more relevant to the person than others. For example, for some people the ability to engage in work or education will be a more important outcome than for others, and in these cases ‘promoting their wellbeing’ effectively may mean taking particular consideration of this aspect. Local authorities should adopt a flexible approach that allows for a focus on which aspects of wellbeing matter most to the individual concerned.

1.12 The principle of promoting wellbeing should be embedded through the local authority care and support system, but how the local authority promotes wellbeing in practice will depend on the particular function being performed. During the assessment process, for instance, the local authority should explicitly consider the most relevant aspects of wellbeing to the individual concerned, and assess how their needs impact on them. Taking this approach will allow for the assessment to identify how care and support, or other services or resources in the local community, could help the person to achieve their outcomes. During care and support planning, when agreeing how needs are to be met, promoting the person’s wellbeing may mean making decisions about particular types or locations of care (for instance, to be closer to family). To give another example, the concept of wellbeing is very important when responding to someone who self-neglects, where it will be crucial to work alongside the person, understanding how their past experiences influence current behaviour. The duty to promote wellbeing applies equally to those who, for a variety of reasons, may be difficult to engage.

1.13 The wellbeing principle applies equally to those who do not have eligible needs but come into contact with the system in some other way (for example, via an assessment that does not lead to ongoing care and support) as it does to those who go on to receive care and support, and have an ongoing relationship with the local authority. It should inform the delivery of universal services which are provided to all people in the local population, as well as being considered when meeting eligible needs. Although the wellbeing principle applies specifically when the local authority performs an activity or task, or makes a decision, in relation to a person, the principle should also be considered by the local authority when it undertakes broader, strategic functions, such as planning, which are not in relation to one individual. As such, wellbeing should be seen as the common theme around which care and support is built at local and national level.

1.14 In addition to the general principle of promoting wellbeing, there are a number of other key principles and standards which local authorities must have regard to when carrying out the same activities or functions:

1. a) The importance of beginning with the assumption that the individual is best-placed to judge the individual’s wellbeing. Building on the principles of the Mental Capacity Act, the local authority should assume that the person themselves knows best their own outcomes, goals and wellbeing. Local authorities should not make assumptions as to what matters most to the person.

2. b) The individual’s views, wishes, feelings and beliefs. Considering the person’s views and wishes is critical to a person-centred system. Local authorities should not ignore or downplay the importance of a person’s own opinions in relation to their life and their care. Where particular views, feelings or beliefs (including religious beliefs) impact on the choices that a person may wish to make about their care, these should be taken into account. This is especially important where a person has expressed views in the past, but no longer has capacity to make decisions themselves.

3. c) The importance of preventing or delaying the development of needs for care and support and the importance of reducing needs that already exist. At every interaction with a person, a local authority should consider whether or how the person’s needs could be reduced or other needs could be delayed from arising. Effective interventions at the right time can stop needs from escalating, and help people maintain their independence for longer (see chapter 2 on prevention).

4. d) The need to ensure that decisions are made having regard to all the individual’s circumstances (and are not based only on their age or appearance, any condition they have, or any aspect of their behaviour which might lead others to make unjustified assumptions about their wellbeing). Local authorities should not make judgments based on preconceptions about the person’s circumstances, but should in every case work to understand their individual needs and goals.

5. e) The importance of the individual participating as fully as possible. In decisions about them and being provided with the information and support necessary to enable the individual to participate. Care and support should be personal, and local authorities should not make decisions from which the person is excluded.

6. f) The importance of achieving a balance between the individual’s wellbeing and that of any friends or relatives who are involved in caring for the individual. People should be considered in the context of their families and support networks, not just as isolated individuals with needs. Local authorities should take into account the impact of an individual’s need on those who support them, and take steps to help others access information or support.

7. g) The need to protect people from abuse and neglect. In any activity which a local authority undertakes, it should consider how to ensure that the person is and remains protected from abuse or neglect. This is not confined only to safeguarding issues, but should be a general principle applied in every case including with those who self-neglect.

8. h) The need to ensure that any restriction on the individual’s rights or freedom of action that is involved in the exercise of the function is kept to the minimum necessary. For achieving the purpose for which the function is being exercised. Where the local authority has to take actions which restrict rights or freedoms, they should ensure that the course followed is the least restrictive necessary. Concerns about self-neglect do not override this principle.

1.15 All of the matters listed above must be considered in relation to every individual, when a local authority carries out a function as described in this guidance. Considering these matters should lead to an approach that looks at a person’s life holistically, considering their needs in the context of their skills, ambitions, and priorities – as well as the other people in their life and how they can support the person in meeting the outcomes they want to achieve. The focus should be on supporting people to live as independently as possible for as long as possible.

1.16 As with promoting wellbeing, the factors above will vary in their relevance and application to individuals. For some people, spiritual or religious beliefs will be of great significance, and should be taken into particular account. Local authorities should consider how to apply these further principles on a case-by-case basis. This reflects the fact that every person is different and the matters of most importance to them will accordingly vary widely.

1.17 Neither these principles, nor the requirement to promote wellbeing, require the local authority to undertake any particular action. The steps a local authority should take will depend entirely on the circumstances. The principles as a whole are not intended to specify the activities which should take place. Instead, their purpose is to set common expectations for how local authorities should approach and engage with people.

Independent living

1.18 Although not mentioned specifically in the way that wellbeing is defined, the concept of ‘independent living’ is a core part of the wellbeing principle. Section 1 of the Care Act includes matters such as individual’s control of their day-to-day life, suitability of living accommodation, contribution to society - and crucially, requires local authorities to consider each person’s views, wishes, feelings and beliefs.

1.19 The wellbeing principle is intended to cover the key components of independent living, as expressed in the UN Convention on the Rights of People with Disabilities (in particular, Article 19 of the Convention). Supporting people to live as independently as possible, for as long as possible, is a guiding principle of the Care Act. The language used in the Act is intended to be clearer, and focus on the outcomes that truly matter to people, rather than using the relatively abstract term ‘independent living’.

Wellbeing throughout the Care Act

1.20 Wellbeing cannot be achieved simply through crisis management; it must include a focus on delaying and preventing care and support needs, and supporting people to live as independently as possible for as long as possible. (See chapter 2 for more detail on approaches to prevention).

1.21 Promoting wellbeing does not mean simply looking at a need that corresponds to a particular service. At the heart of the reformed system will be an assessment and planning process that is a genuine conversation about people’s needs for care and support and how meeting these can help them achieve the outcomes most important to them. Where someone is unable to fully participate in these conversations and has no one to help them, local authorities will arrange for an independent advocate. Chapters 6 (Assessment and eligibility), 10 (Care and support planning), and 7 (Independent advocacy) discuss this in more detail.

1.22 In order to ensure these conversations look at people holistically, local authorities and their partners must focus on joining up around an individual, making the person the starting point for planning, rather than what services are provided by what particular agency. Chapter 15 (integration and cooperation) sets this out in more detail.

1.23 In particular, the Care Act is designed to work in partnership with the Children and Families Act 2014, which applies to 0 to 2.5 year old children and young people with SEN and Disabilities. In combination, the 2 Acts enable areas to prepare children and young people for adulthood from the earliest possible stage, including their transition to adult services. This is considered in more detail at chapter 16.

1.24 Promoting wellbeing is not always about local authorities meeting needs directly. It will be just as important for them to put in place a system where people have the information they need to take control of their care and support and choose the options that are right for them. People will have an opportunity to request their local authority support in the form of a direct payment that they can then use to buy their own care and support using this information. Chapters 3 (Information and advice) and 12 (Direct payments) explain this in more detail.

1.25 Control also means the ability to move from one area to another or from children’s services to the adult system without fear of suddenly losing care and support. The Care Act ensures that people will be able to move to a different area without suddenly losing their care and support and provides clarity about who will be responsible for care and support in different situations. It also includes measures to help young people move to the adult care and support system, ensuring that no one finds themselves suddenly without care on turning 18. Chapters 20 (Continuity of care), 19 (Ordinary residence) and 16 (Transition to adult care and support) set this out in more detail.

1.26 It is not possible to promote wellbeing without establishing a basic foundation where people are safe and their care and support is on a secure footing. The Care Act puts in place a new framework for adult safeguarding and includes measures to guard against provider failure to ensure this is managed without disruption to services. Chapters 14 (Safeguarding), and 5 (Managing provider failure) set this out in more detail.

The role of the Principal Social Worker in care and support

1.27 The purpose of this section of the guidance is to further clarify arrangements to have in place a designated principal social worker in adult care and support. Local authorities should make arrangements to have a qualified and registered social work professional practice lead in place to:

• lead and oversee excellent social work practice
• support and develop arrangements for excellent practice
• lead the development of excellent social workers
• support effective social work supervision and decision making
• oversee quality assurance and improvement of social work practice
• advise the director of adult social services (DASS) and/or wider council in complex or controversial cases and on developing case or other law relating to social work practice
• function at the strategic level of the Professional Capabilities Framework

The local authority role in supporting principal social workers

1.28 All local authorities should ensure principal social workers are given the credibility, authority and capacity to provide effective leadership and challenge, both at managerial and practitioner level and are given sufficient time to carry out their role. The principal social worker should also be visible across the organisation, from elected members and senior management, through to frontline social workers, people who use services and carers. Local authorities should therefore ensure that the role is located where it can have the most impact and profile.

1.29 Whatever arrangements are agreed locally, the principal social worker should maintain close contact with the DASS and frontline practitioners and engage in some direct practice. This can take several different forms, including direct casework, co-working, undertaking practice development sessions, mentoring.

1.30 The integration of health and care and support will increasingly require social workers to lead, both in their teams and across professional boundaries, particularly in the context of safeguarding, mental health and mental capacity. Organisational models of social work have traditionally focused on managerial, as opposed to professional leadership - through their direct link to practice, principal social workers can ‘bridge the gap’ between professional and managerial responsibility, to influence the delivery and development of social work practice.

Principal social workers and safeguarding

1.31 Chapter 14 of this statutory guidance endorses the: ‘Making Safeguarding Personal’ approach. This represents a fundamental shift in social work practice in relation to safeguarding, with a focus on the person not the process. As the professional lead for social work, principal social workers should have a broad knowledge base on safeguarding and Making Safeguarding Personal and be confident in its application in their own and others’ work. Local authorities should, therefore, ensure that principal social workers lead on ensuring the quality and consistency of social work practice in fulfilling its safeguarding responsibilities. In particular they should have extensive knowledge of the legal and social work response options to specific cases and in general.

2. Preventing, reducing or delaying needs

This chapter provides guidance on section 2 of the Care Act 2014.

This chapter covers:

• defining prevention
• primary prevention/promoting wellbeing
• secondary prevention/early intervention
• tertiary prevention/formal intervention, intermediate care and reablement
• the focus of prevention
• developing local approaches to prevention
• working with others to focus on prevention
• identifying those who may benefit from prevention
• enabling access to preventative support
• charging for preventative services

2.1 It is critical to the vision in the Care Act that the care and support system works to actively promote wellbeing and independence, and does not just wait to respond when people reach a crisis point. To meet the challenges of the future, it will be vital that the care and support system intervenes early to support individuals, helps people retain or regain their skills and confidence, and prevents need or delays deterioration wherever possible.

2.2 There are many ways in which a local authority can achieve the aims of promoting wellbeing and independence and reducing dependency. This guidance sets out how local authorities should go about fulfilling their responsibilities, both individually and in partnership with other local organisations, communities, and people themselves.

2.3 The local authority’s responsibilities for prevention apply to all adults, including:

• people who do not have any current needs for care and support
• adults with needs for care and support, whether their needs are eligible and/or met by the local authority or not (see chapter 6)
• carers, including those who may be about to take on a caring role or who do not currently have any needs for support, and those with needs for support which may not be being met by the local authority or other organisation

2.4 The term ‘prevention’ or ‘preventative’ measures can cover many different types of support, services, facilities or other resources. There is no single definition for what constitutes preventative activity and this can range from wide-scale whole-population measures aimed at promoting health, to more targeted, individual interventions aimed at improving skills or functioning for one person or a particular group or lessening the impact of caring on a carer’s health and wellbeing. In considering how to give effect to their responsibilities, local authorities should consider the range of options available, and how those different approaches could support the needs of their local communities.

2.5 ‘Prevention’ is often broken down into 3 general approaches – primary, secondary and tertiary prevention – which are described in more detail below. The use of such terms is aimed to illustrate what type of services, facilities and resources could be considered, arranged and provided as part of a prevention service, as well as to whom and when such services could be provided or arranged. However, services can cut across any or all of these 3 general approaches and as such the examples provided under each approach are not to be seen as limited to that particular approach. Prevention should be seen as an ongoing consideration and not a single activity or intervention.

Prevent: primary prevention/promoting wellbeing

2.6 These are aimed at individuals who have no current particular health or care and support needs. These are services, facilities or resources provided or arranged that may help an individual avoid developing needs for care and support, or help a carer avoid developing support needs by maintaining independence and good health and promoting wellbeing. They are generally universal (for example, available to all) services, which may include, but are not limited to interventions and advice that:

• provide universal access to good quality information
• support safer neighbourhoods
• promote healthy and active lifestyles (for example. exercise classes)
• reduce loneliness or isolation (for example: befriending schemes or community activities such as the case study below)
• encourage early discussions in families or groups about potential changes in the future (for example: conversations about potential care arrangements or suitable accommodation should a family member become ill or disabled)

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Case Study: LinkAge programme

The LinkAge programme aims to promote and enhance the lives of older people (55+ years old) through a range of activities, from walking groups to coffee mornings, through a number of older people-led ‘hubs’ across the city. The main aim is to bring those people that feel socially isolated and lonely into their local communities. In an evaluation of a new hub there was significant improvement on a friendship scale with scores moving from people feeling isolated or with a low level of social support at the beginning of the hub to very or highly socially connected at follow up.

Eileen (85) said:

I look forward to Fridays each week and enjoy the social aspect of the club too.”

Lyn said:

if it wasn’t for LinkAge I don’t quite know what would have happened. It’s made life bearable, well more than bearable, it’s made it life.”

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Reduce: secondary prevention/early intervention

2.7 These are more targeted interventions aimed at individuals who have an increased risk of developing needs, where the provision of services, resources or facilities may help slow down or reduce any further deterioration or prevent other needs from developing. Some early support can help stop a person’s life tipping into crisis, for example helping someone with a learning disability with moderate needs manage their money, or a few hours support to help a family carer who is caring for their son or daughter with a learning disability and behaviour that challenges at home.

2.8 Early intervention could also include a fall prevention clinic, adaptions to housing to improve accessibility or provide greater assistance, handyman services, short term provision of wheelchairs or telecare services. In order to identify those individuals most likely to benefit from such targeted services, local authorities may undertake screening or case-finding, for instance to identify individuals at risk of developing specific health conditions or experiencing certain events (such as strokes, or falls), or those that have needs for care and support which are not currently met by the local authority. Targeted interventions should also include approaches to identifying carers, including those who are taking on new caring responsibilities. Carers can also benefit from support to help them develop the knowledge and skills to care effectively and look after their own health and wellbeing.

Delay: tertiary prevention/formal intervention

2.9 These are interventions aimed at minimising the effect of disability or deterioration for people with established or complex health conditions, (including progressive conditions, such as dementia), supporting people to regain skills and manage or reduce need where possible. Tertiary prevention could include, for example the rehabilitation of people who are severely sight impaired (see also chapter 22 sight registers). Local authorities must provide or arrange services, resources or facilities that maximise independence for those already with such needs, for example, interventions such as the provision of formal care such as meeting a person’s needs in their own home; rehabilitation/reablement services, for example, community equipment services and adaptations; and the use of joint case-management for people with complex needs.

2.10 Tertiary prevention services could also include helping improve the lives of carers by enabling them to continue to have a life of their own alongside caring, for example through respite care, peer support groups like dementia cafés, or emotional support or stress management classes which can provide essential opportunities to share learning and coping tips with others. This can help develop mechanisms to cope with stress associated with caring and help carers develop an awareness of their own physical and mental health needs.

2.11 Prevention is not a one off activity. For example, a change in the circumstances of an adult and/or carer may result in a change to the type of prevention activity that would be of benefit to them (see para 2.32). Prevention can sometimes be seen as something that happens primarily at the time of (or very soon after) a diagnosis or assessment or when there has been a subsequent change in the person’s condition. Prevention services are, however, something that should always be considered. For example, at the end of life in relation to carers, prevention services could include the provision of pre-bereavement support.

Intermediate care and reablement

2.12 There is a tendency for the terms ‘reablement’, ‘rehabilitation’ and ‘intermediate care’ to be used interchangeably. The National Audit of Intermediate Care categorises 4 types of intermediate care:

• crisis response – services providing short-term care (up to 48 hours)
• home-based intermediate care – services provided to people in their own homes by a team with different specialities but mainly health professionals such as nurses and therapists
• bed-based intermediate care – services delivered away from home, for example, in a community hospital
• reablement – services to help people live independently which are provided in the person’s own home by a team of mainly care and support professionals

2.13 The term ‘rehabilitation’ is sometimes used to describe a particular type of service designed to help a person regain or re-learn some capabilities where these capabilities have been lost due to illness or disease. Rehabilitation services can include provisions that help people attain independence and remain or return to their home and participate in their community, for example independent living skills and mobility training for people with visual impairment.

2.14 ‘Intermediate care’ services are provided to people, usually older people, after they have left hospital or when they are at risk of being sent to hospital. Intermediate care is a programme of care provided for a limited period of time to assist a person to maintain or regain the ability to live independently – as such they provide a link between places such as hospitals and people’s homes, and between different areas of the health and care and support system – community services, hospitals, GPs and care and support.

2.15 To prevent needs emerging across health and care, integrated services should draw on a mixture of qualified health, care and support staff, working collaboratively to deliver prevention. This could involve, for instance, reaching beyond traditional health or care interventions to help people develop or regain the skills of independent living and active involvement in their local community.

Carers and prevention

2.16 Carers play a significant role in preventing the needs for care and support for the people they care for, which is why it is important that local authorities consider preventing carers from developing needs for care and support themselves. There may be specific interventions for carers that prevent, reduce or delay the need for carers’ support. These interventions may differ from those for people without caring responsibilities. Examples of services, facilities or resources that could contribute to preventing, delaying or reducing the needs of carers may include but is not limited to those which help carers to:

• care effectively and safely – both for themselves and the person they are supporting, for example, timely interventions or advice on moving and handling safely or avoiding falls in the home, or training for carers to feel confident performing basic care tasks
• look after their own physical and mental health and wellbeing, including developing coping mechanisms
• make use of IT and other technology
• make choices about their own lives, for example managing their caring role and paid employment
• find support and services available in their area
• access the advice, information and support they need including information and advice on welfare benefits and other financial information and about entitlement to carers’ assessments (see chapter 6)

2.17 As with the people they care for, the duty to prevent carers from developing needs for support is distinct from the duty to meet their eligible needs (see chapter 6). While a person’s eligible needs may be met through universal preventative services, this will be an individual response following a needs or carers assessment. Local authorities cannot fulfil their universal prevention duty in relation to carers simply by meeting eligible needs, and nor would universal preventative services always be an appropriate way of for meeting carers’ eligible needs.

The focus of prevention

Promoting wellbeing

2.18 Local authorities must have regard to promoting wellbeing and the principles set out in chapter 1. Local authorities should look at an individual’s life holistically. This will mean considering any care and support needs in the context of the person’s skills, ambitions and priorities. This should include consideration of the role a person’s family or friends can play in helping the person to meet their goals. This is not creating or adding to their caring role but including them in an approach supporting the person to live as independently as possible for as long as possible. In regard to carers, the local authority should consider how they can be supported to look after their own health and wellbeing and to have a life of their own alongside their caring responsibilities.

2.19 As highlighted in the case study, where people live alone a person may not always have the support from family or friends because they may not live close by. For this group of people prevention needs to be considered through other means, such as the provision of community services and activities that would help support people to maintain an independent life.

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Case Study

An older man lives alone with some support from his daughter who works full-time. He needs occasional personal care to remain living independently with dignity, and it is likely that these needs will increase. He has lost contact with family and friends following his wife’s death and rarely goes out without support from his daughter who is restricted to taking him out at weekends because of work commitments.

An assessment would consider all of his needs, including those currently being met by his daughter, along with the outcomes he wishes to achieve. A separate carer’s assessment offered to his daughter (or a combined assessment if both father and daughter agreed) would establish the daughter’s willingness and ability to care and continue to care and how best to promote her own wellbeing, for example by having regard to the outcomes she wishes to achieve. This joint assessment would look at issues such as the possible impact on the daughter of supporting her father while in full-time employment as well as the father’s isolation, ability to connect with others or be an active citizen.

Community groups, voluntary organisations, and buddying services could support the father to reduce the social isolation that he may be feeling and maximise opportunities to look after his own health and wellbeing and participate in local community activities. This, in turn could lessen the impact of caring on his daughter and enable her to continue to support her father effectively alongside paid employment. Such support can be identified/suggested alongside other, perhaps more formal services to meet personal care needs, and can be an effective way of promoting wellbeing. In this example, the aspects of wellbeing relating to social wellbeing and family relationships might be promoted.

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Developing resilience and promoting individual strength

2.20 In developing and delivering preventative approaches to care and support, local authorities should ensure that individuals are not seen as passive recipients of support services, but are able to design care and support based around achievement of their goals. Local authorities should actively promote participation in providing interventions that are co-produced with individuals, families, friends, carers and the community. ‘Co-production’ is when an individual influences the support and services received, or when groups of people get together to influence the way that services are designed, commissioned and delivered. Such interventions can contribute to developing individual resilience and help promote self-reliance and independence, as well as ensuring that services reflect what the people who use them want.

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Case Study

Derby City Council used co-production to develop clear and easy to use customer information to support their new customer journey for self-directed support. New information that has been produced includes an assessment form, support planning tools for people using services, customer leaflets and a staff handbook. A small project team held discussions and workshops to identify information that needed improving to be clearer and suggestions for improvement, for example, a new assessment form. Staff working in adult social care assessment teams had training on how to make best use of the new suite of information.

The inclusive approach taken to re-designing the information took longer than an internally managed process, but has resulted in better information, informed people using services and bringing their own perspective and experience. The co-production approach led to the development of key principles which can be used in other areas of communication. The approach is being continued.

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2.21 Through the assessment process, an individual will have direct contact with a local authority. A good starting point for a discussion that helps develop resilience and promotes independence would be to ask: ‘what does a good life look like for you and your family and how can we work together to achieve it?’ Giving people choice and control over the support they may need and access to the right information enables people to stay as well as possible, maintain independence and caring roles for longer.

2.22 Social workers, occupational therapists, other professionals, service providers and commissioners who are effective at preventing, reducing, or delaying needs for care and support are likely to have a holistic picture of the individuals and families receiving support. This will include consideration of a person’s strengths and their informal support networks as well as their needs and the risks they face. This approach recognises the value in the resources of voluntary and community groups and the other resources of the local area.

Developing a local approach to preventative support

2.23 A local authority must provide or arrange for services, facilities or resources which would prevent, delay or reduce individuals’ needs for care and support, or the needs for support of carers. Local authorities should develop a clear, local approach to prevention which sets out how they plan to fulfill this responsibility, taking into account the different types and focus of preventative support as described above. Developing a local approach to preventative support is a responsibility wider than adult care and support alone, and should include the involvement, by way of example, of those responsible for public health, leisure, transport, and housing services which are relevant to the provision of care and support.

2.24 Whilst local authorities may choose to provide some types of preventative support themselves, others may be more effectively provided in partnership with other local partners (for example, rehabilitation or falls clinics provided jointly with the local NHS), and further types may be best provided by other organisations (for example, specialist housing providers or some carers’ services). A local authority’s commissioning strategy for prevention should consider the different commissioning routes available, and the benefits presented by each. This could include connecting to other key areas of local preventative activity outside care, including housing, planning and public health.

2.25 In developing a local approach to prevention, the local authority must take steps to identify and understand both the current and future demand for preventative support, and the supply in terms of services, facilities and other resources available.

2.26 Local authorities must consider the importance of identifying the services, facilities and resources that are already available in their area, which could support people to prevent, reduce or delay needs, and which could form part of the overall local approach to preventative activity. Understanding the breadth of available local resources will help the local authority to consider what gaps may remain, and what further steps it should itself take to promote the market or to put in place its own services.

2.27 Where the local authority does not provide such types of preventative support itself, it should have mechanisms in place for identifying existing and new services, maintaining contact with providers over time, and helping people to access them. Local approaches to prevention should be built on the resources of the local community, including local support networks and facilities provided by other partners and voluntary organisations.

2.28 Local authorities must promote diversity and quality in provision of care and support services, and ensure that a person has a variety of providers to choose from (see chapter 4). Considering the services, facilities and resources which contribute towards preventing or delaying the development of needs for care and support is a core element of fulfilling this responsibility. A local authority should engage local providers of care and support in all aspects of delivery and encourage providers to innovate and respond flexibly to develop interventions that contribute to preventing needs for care and support.

2.29 Local authorities should consider the number of people in its area with existing needs for care and support, as well as those at risk of developing needs in the future, and what can be done to prevent, delay or reduce those needs now and in the future. In doing so, a local authority should draw on existing analyses such as the Joint Strategic Needs Assessment, and work with other local partners such as the NHS and voluntary sector to develop a broader, shared understanding of current and future needs, and support integrated approaches to prevention.

2.30 In particular, local authorities must consider how to identify ‘unmet need’ - for example, those people with needs which are not currently being met, whether by the local authority or anyone else. Understanding unmet need will be crucial to developing a longer-term approach to prevention that reflects the true needs of the local population. This assessment should also be shared with local partners, such as through the health and wellbeing board, to contribute to wider intelligence for local strategies. Preventative services, facilities or resources are often most effective when brought about through partnerships between different parts of the local authority and between other agencies and the community such as those people who are likely to use and benefit from these services.

2.31 Local authorities should consider how they can work with different partners to identify unmet needs for different groups and coordinate shared approaches to preventing or reducing such needs, for example working with the NHS to identify carers, and working with independent providers including housing providers and the voluntary sector, who can provide local insight into changing or emerging needs beyond eligibility for publically-funded care.

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Case Study: Midland Heart’s reablement service

At 82, Beryl was diagnosed with stomach cancer and admitted to hospital. As a result of a major operation, she now has a permanent colostomy bag. After only a month Beryl was successfully discharged from hospital to her own home with a reablement package from Leicester City Council and support from the housing association, Midland Heart, to help her regain her independence.

If Beryl had not received this support, she would have been discharged to a more costly care home. The reablement service ensured that Beryl’s home was suitably adapted for her return, which allowed a speedy discharge and avoided the need for institutional care. The support service has assisted her attendance at medical appointments with her GP and monitored the impact of her medication.

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Working with other partners to focus on prevention

2.32 Developing and delivering local approaches to prevention, the local authority should consider how to align or integrate its approach with that of other local partners. Preventing needs will often be most effective when action is undertaken at a local level, with different organisations working together to understand how the actions of each may impact on the other.

2.33 Within the local authority, prevention of care and support needs is closely aligned to other local authority responsibilities in relation to public health, children’s services, and housing, for example. Across the local landscape, the role of other bodies including the local NHS (for example: GPs, dentists, pharmacists, ophthalmologists), welfare and benefits advisers (for example at Jobcentre Plus), the police, fire service, prisons in respect of those persons detained or released with care and support needs, service providers and others will also be important in developing a comprehensive approach.

2.34 Local authorities must ensure the integration of care and support provision, including prevention with health and health-related services, which include housing (see chapter 15). This responsibility includes in particular a focus on integrating with partners to prevent, reduce or delay needs for care and support.

2.35 A local authority must cooperate with each of its relevant partners and the partners must cooperate with the local authority (see chapter 15 on cooperation and details of specific relevant partners), for example, in relation to the provision of preventative services and the identification of carers, a local authority must cooperate with NHS bodies.

2.36 A local authority must also set up arrangements between its relevant partners and individual departments in relation to its care and support functions, which includes prevention. Relevant partners and individual departments include, but are not limited to, housing departments where, for example, housing services or officers may be well placed to identify people with dementia and their carers, and provide housing related support and/or in partnership with others, home from hospital services or ‘step up step down’ provision.

Identifying those who may benefit from preventative support

2.37 Local authorities should put in place arrangements to identify and target those individuals who may benefit from particular types of preventative support. Helping people to access such types of support when they need it is likely to have a significant impact on their longer-term health and wellbeing, as well as potentially reducing or delaying the need for ongoing care and support from the local authority.

2.38 In developing such approaches, local authorities should consider the different opportunities for coming into contact with those people who may benefit from preventative support, including where the first contact may be with another professional outside the local authority, for example, GPs, pharmacists or welfare and benefit advisers. There are a number of interactions and access points that could bring a person into contact with the local authority or a partner organisation and act as a trigger point for the local authority to consider whether the provision of a preventative service, or some other step is appropriate. These might include, for example:

• initial contact through a customer services centre, whether by the person concerned or someone acting on their behalf
• contact with a GP, community nurses, housing officers or other professionals which leads to a referral to the local authority
• an assessment of needs or a carer’s assessment (see chapter 6 on assessment), which identifies that the person would benefit from a preventative service or other type of support available locally

2.39 Many people with low level care and support needs will approach the voluntary sector for advice in the first instance. Local authorities and the voluntary sector should work together on how it can share this information to gain a fuller picture of local need as possible. Authorities should bring data from these different sources together to stratify who in the community may need care and support in the future and what types of needs they are likely to have, and use this information to target their preventative services effectively.

2.40 Prevention should be a consistent focus for local authorities in undertaking their care and support functions. However, there may be key points in a person’s life or in the care and support process where a preventative intervention may be particularly appropriate or of benefit to the person. Approaches to identifying those people who may benefit from preventative support should consider how to locate people in such circumstances, for example:

• bereavement
• hospital admission and/or discharge
• people who have been recently admitted to or released from prison
• application for benefits such as Attendance Allowance, or Carer’s Allowance
• contact with/use of local support groups
• contact with/use of private care and support
• changes in housing

2.41 A local authority must establish and maintain a service for providing people with information and advice relating to care and support (see chapter 3). In addition to any more targeted approaches to communicating with individuals who may benefit from preventative support, this service should include information and advice about preventative services, facilities or resources, so that anyone can find out about the types of support available locally that may meet their individual needs and circumstances, and how to access them.

Helping people access preventative support

2.42 A variety of different kinds of service, facilities or resources can be preventative and can help individuals live well and maintain their independence or caring roles for longer.

2.43 Local authorities should be innovative and develop an approach to prevention that meets the needs of their local population. A preventative approach requires a broad range of interventions, as one size will not fit all.

2.44 Where a local authority has put in place mechanisms for identifying people who may benefit from a type of preventative support, it should take steps to ensure that the person concerned understands the need for the particular measure, and is provided with further information and advice as necessary.

2.45 Contact with a person who is identified as being able to benefit from preventative support may lead to the local authority becoming aware that the person appears to have needs for either or both care and support and support in a role as a carer. This appearance of need may trigger the requirement to carry out a needs assessment (in the case of an adult with needs for care and support), or a carer’s assessment (see paragraphs 2.48 to 2.54 below). However, where a local authority is not required to carry out such an assessment under the Care Act, it should nonetheless take steps to establish whether the person identified will benefit from the type of preventative support proposed.

2.46 Where a person is provided with any type of service, or support to access any facility or resource as a preventative measure, the local authority should also provide the person with information in relation to the services offered or measure undertaken. The local authority is not required to provide a care and support plan or a support plan where it only takes steps under section 2 of the Care Act; however, it should consider which aspects of a plan should be provided in these circumstances, and should provide such information as is necessary to enable the person to understand:

• what needs the person has or may develop, and why the intervention or other action is proposed in their regard
• what the expected outcome for the action proposed is, and any relevant timescale in which those outcomes are expected
• what is proposed to take place at the end of the measure (for instance, whether an assessment of need or a carer’s assessment will be carried out at that point)

2.47 The person concerned must agree to the provision of any service or other step proposed by the local authority. Where the person refuses, but continues to appear to have needs for care and support (or for support, in the case of a carer), then the local authority must proceed to offer the individual an assessment.

Assessment of adults’ and carers’ needs

2.48 In assessing whether an adult has any care and support needs or a carer has any needs for support, the local authority must consider whether the person concerned would benefit from the preventative services, facilities or resources provided by the local authority or which might otherwise be available in the community. This is regardless of whether, in fact, the adult or carer is assessed as having any care and support needs or support needs. As part of the assessment process, the local authority considers the capacity of the person to manage their needs or achieve the outcomes which matter to them, and allows for access to preventative support before a decision is made on whether the person has eligible needs (see chapter 6 on assessment).

2.49 As part of this process, the local authority should also take into account the person’s own capabilities, and the potential for improving their skills, as well as the role of any support from family, friends or others that could help them to achieve what they wish for from day-to-day life. This should not assume that others are willing or able to take up caring roles. Where it appears to the local authority that a carer may have needs for support (whether currently or in the future), a carer’s assessment must always be offered.

2.50 Children should not undertake inappropriate or excessive caring roles that may have an impact on their development. A young carer becomes vulnerable when their caring role risks impacting upon their emotional or physical wellbeing and their prospects in education and life. A local authority may become aware that a child is carrying out a caring role through an assessment or informed through family members or a school. A local authority should consider how supporting the adult with needs for care and support can prevent the young carer from under taking excessive or inappropriate care and support responsibilities. Where a young carer is identified, the local authority must undertake a young carer’s assessment under part 3 of the Children Act 1989.

2.51 Considering the support from family, friends or others is important in taking a holistic approach to see the person in the context of their support networks and understanding how their needs may be prevented, reduced or delayed by others within the community, rather than by more formal services (also see chapter 6, paras. 6.65 to 6.71, about the whole family approach to assessment).

2.52 If a person is provided with care and support or support as a carer by the local authority, the authority must provide them with information and advice about what can be done to prevent, delay, or reduce their needs as part of their care and support plan or support plan. This should also include consideration of the person’s strengths and the support from other members of the family, friends or the community (see chapter 10 on care and support planning).

2.53 Regardless of whether or not a person is ultimately assessed as having either any needs at all or any needs which are to be met by the local authority, the authority must in any case provide information and advice in an accessible form, about what can be done to prevent, delay, or reduce development of their needs. This is to ensure that all people are provided with targeted, personalised information and advice that can support them to take steps to prevent or reduce their needs, connect more effectively with their local community, and delay the onset of greater needs to maximise their independence and quality of life. Where a person has some needs that are eligible, and also has some other needs that are not deemed to be eligible, the local authority must provide information and advice on services facilities or resources that would contribute to preventing, reducing or delaying the needs which are not eligible, and this should be aligned and be consistent with the care and support plan for the person with care needs, or support plan for the carer.

2.54 It is important that people receive information in a timely manner about the services or interventions that can help or contribute to preventing an escalation in needs for care and support. Supporting people’s access to the right information at the right time is a key element of a local authority’s responsibilities for prevention.

Charging for preventative support

2.55 Preventative services, like other forms of care and support, are not always provided free, and charging for some services is vital to ensure affordability. The Care and Support (Preventing Needs for Care and Support) Regulations 2014 continue to allow local authorities to make a charge for the provision of certain preventative services, facilities or resources. The regulations also provide that some other specified services must be provided free of charge.

2.56 Prevention services facilities or resources may not involve local authorities directly providing or commissioning a service. Some effective forms of prevention result from partnerships with other public services, voluntary and community organisations and other providers. In developing these partnerships local authorities should consider what obstacles there may be which might prevent people on low incomes from benefitting from the activities and take reasonable steps to avoid this.

2.57 Where a local authority chooses to charge for a particular service, it should consider how to balance the affordability and viability of the activity with the likely impact that charging may have on uptake. In some cases, charging may be necessary in order to make a preventative service viable or keep a service running.

2.58 When charging for any type of preventative support, local authorities should take reasonable steps to ensure that any charge is affordable for the person concerned. This does not need to follow the method of the financial assessment used for mainstream charging purposes; and the use of such a process is likely to be disproportionate.

2.59 However, local authorities should consider adopting a more proportionate or ‘light-touch’ approach which ensures that charges are only paid by those who can afford to do so. In any event, a local authority must not charge more than it costs to provide or arrange for the service, facility or resource.

2.60 The regulations require that intermediate care and reablement must be provided free of charge for up to 6 weeks, as must aids and minor adaptations (for example: adaptations up to the value of £1,000) (see also 8.14).

2.61 Where local authorities provide intermediate care or reablement to those who require it, this must be provided free of charge for a period of up to 6 weeks. This is for all adults, irrespective of whether they have eligible needs for ongoing care and support. Although such types of support will usually be provided as a preventative measure under section 2 of the Act, they may also be provided as part of a package of care and support to meet eligible needs. In these cases, regulations also provide that intermediate care or reablement cannot be charged for in the first 6 weeks, to ensure consistency.

2.62 Whilst they are both time-limited interventions, neither intermediate care nor reablement should have a strict time limit, since the period of time for which the support is provided should depend on the needs and outcomes of the individual. In some cases, for instance a period of rehabilitation for a visually impaired person (a specific form of reablement) ^{[footnote 2]}, may be expected to last longer than 6 weeks. Whilst the local authority does have the power to charge for this where it is provided beyond 6 weeks, local authorities should consider continuing to provide it free of charge beyond 6 weeks in view of the clear preventative benefits to the individual and, in many cases, the reduced risk of hospital admissions.

2.63 Local authorities should consider the potential impact and consequences of ending the provision of preventative services. Poorly considered exit strategies can negate the positive outcomes of preventative services, facilities or resources, and ongoing low-level care and support can have significant impact on preventing, reducing and delaying need.

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Case Study

Mr A is a 91 year old man who lives alone with his dog in his house. He is usually independent, is a passionate cook and enjoys socialising. He drives a car. Whilst out walking his dog he suffered a stroke, he fell, causing a fractured neck of femur. He was admitted to hospital and underwent surgery for a hip replacement which meant he had to follow hip precautions for 6 weeks.

The stroke had left him with slight left-sided weakness and problems with concentration, sequencing and attention. He was transferred to a community hospital for rehabilitation where the physiotherapists (PTs) and occupational therapists (OTs) worked on mobility, transfers, personal care following hip precautions, stair climbing and kitchen tasks. Cognitive screens were completed and the OTs targeted their input on helping improve concentration, sequencing and attention.

Mr A was discharged, independently mobile using a frame, independent transferring using equipment and stair climbing with supervision. He was discharged home with 4 calls per day from BEST plus (Bradford Enablement Support Team). Joint sessions between the PTs and OTs and BEST plus were completed to work on the following:

• practising walking safely indoors using 2 walking sticks
• increase hip strength through exercises
• to be safe and independent washing and dressing
• to be safe and independent preparing hot drinks and simple snacks and transport safely using trolley

The above goals were achieved and new goals were set in consultation with Mr A:

• to be safe and independent walking outdoors using 2 sticks
• to be safe and independent bathing using bath lift
• to be safe and independent preparing hot meals from scratch
• to be safe and independent completing shopping using Access bus
• to be safe and independent walking dog short distances using 4 wheeled walker.

After 6 weeks of continued BEST plus input in Mr A’s home, he was able to achieve all of his goals and all Social Services input was withdrawn. Aspects of Mr A’s wellbeing have been promoted including physical wellbeing, social wellbeing, and control over day-to-day life.

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3. Information and advice

This chapter provides guidance on section 4 of the Care Act 2014 and covers:

• the duty placed on local authorities to establish and maintain information and advice services relating to care and support for all people in its area
• the broad audience for the information and advice service
• the local authority role with respect to financial information and advice
• the accessibility and proportionality of information and advice
• the development of plans/strategies to meet local needs

3.1 Information and advice is fundamental to enabling people, carers and families to take control of, and make well-informed choices about, their care and support and how they fund it. Not only does information and advice help to promote people’s wellbeing by increasing their ability to exercise choice and control, it is also a vital component of preventing or delaying people’s need for care and support.

3.2 Local authorities must: ‘establish and maintain a service for providing people in its area with information and advice relating to care and support for adults and support for carers’.

3.3 The local authority has an active and critical role in the provision of information and advice and must take an active role. To fulfil its duty under section 4 of the Act, a local authority is likely to need to go further than providing information and advice directly (though direct provision will be important) by working to ensure the coherence, sufficiency, availability and accessibility of information and advice relating to care and support across the local authority area. Importantly, this duty to establish and maintain an information and advice service relates to the whole population of the local authority area, not just those with care and support needs or in some other way already known to the system.

3.4 It is important to be clear that the duty to establish and maintain an information and advice service is distinct from the duty to meet eligible needs (see chapter 6): this is true for both people with care and support needs and their carers. While a person’s eligible needs may be met by the provision of information and advice this will be an individual response following a needs or carers assessment. Local authorities cannot fulfil their universal information and advice duty simply by meeting eligible needs, and nor would information and advice always be an appropriate way of meeting eligible needs.

3.5 The local authority must ensure that information and advice services established cover more than just basic information about care and support and cover the wide range of care and support related areas set out in para. 3.22. The service should also address, prevention of care and support needs, finances, health, housing, employment, what to do in cases of abuse or neglect of an adult and other areas where required. In fulfilling this duty, local authorities should consider the people they are communicating with on a case by case basis, and seek to actively encourage them towards the types of information and/or advice that may be particularly relevant to them.

3.6 Local authorities must also have regard to identifying people that contact them who may benefit from financial information and advice independent of the local authority and actively facilitate those people to access to it (see paragraph 3.50). Separately to the duty to establish and maintain an information and advice service, local authorities must provide independent advocacy to facilitate the person’s involvement in the care and support assessment, planning and review processes where an individual would experience substantial difficulty in understanding, retaining or using information given, or in communicating their views, wishes or feelings and where there is nobody else appropriate (see chapter 7).

3.7 The availability and provision of information and advice, whether more general information about the way the system operates in the local authority area or more personalised information on a person’s specific needs, are essential building blocks to all of the reforms and many of the specific duties the Act introduces. This chapter of guidance should therefore be read in conjunction with guidance throughout this document, including:

• promoting individual wellbeing (chapter 1)
• prevention of needs for care and support (chapter 2)
• integration of care and support with health and housing related services (chapter 15)
• promoting diverse and high quality services (chapter 4)
• assessment and eligibility (chapter 6)
• personal budgets, personal care and support planning and direct payments (chapters 10 to 13)
• deferred payment agreements (chapter 9)
• continuity of care (chapter 20)
• safeguarding (chapter 14)
• transition to adult care and support (chapter 16)
• independent advocacy (chapter 7)

Terminology

3.8 In this section of guidance, the term ‘information’ means the communication of knowledge and facts regarding care and support. ‘Advice’ means helping a person to identify choices and/or providing an opinion or recommendation regarding a course of action in relation to care and support.

3.9 This section of guidance also uses the term ‘advocacy’ to mean supporting a person to understand information, express their needs and wishes, secure their rights, represent their interests and obtain the care and support they need.

3.10 This guidance talks about ‘financial information and advice’ which includes a broad spectrum of services whose purpose is to help people plan, prepare and pay for their care costs. In places it talks of ‘independent’ financial information or advice which in this document means services independent of the local authority. This guidance also refers to ‘regulated’ financial advice which means advice from an organisation regulated by the Financial Conduct Authority (FCA) which can extend to individual recommendations about specific financial products. Local authorities should ensure that people are able to access all of these types of financial information and advice which help people plan and pay for their care.

The duty to establish and maintain a service

3.11 Local authorities must establish and maintain a service for providing people in their areas with information and advice relating to care and support for adults and support for carers. In doing so local authorities should take account of the services currently in place and actions already taken and plans with partner organisations resulting from Joint Strategic Needs Assessments and Joint Health and Wellbeing Strategies. The information and advice service must cover the needs of all its population, not just those who are in receipt of local authority funded care or support. For example, people may often require information and advice before they need to access care or support services, to consider what actions they may take now to prevent or delay any need for care, or how they might plan to meet the cost of future care needs.

3.12 People need information and advice across many areas to support them to make informed choices about their care and support (see para. 3.23).

3.13 In establishing and maintaining an information and advice service, local authorities should ensure that they engage widely with people with care and support needs, carers, the wider public and local providers of information and advice and other types of care and support, to identify what is available and exactly what is needed locally, and how and where information and advice should best be provided.

3.14 It is important to recognise that while local authorities must establish and maintain a service, the duty does not require they provide all elements of this service. Rather, under this duty local authorities are expected to understand, co-ordinate and make effective use of other high quality statutory, voluntary and/or private sector information and advice resources available to people within their areas. This may also include provision of a service or parts of a service in conjunction with one or more local authorities, health services, children’s services, ^{[footnote 3]} or reuse of information from other local or national sources. When a local need for additional information and advice services is identified, local authorities should recognise the relevance of independent and impartial advice and should consider carefully whether services should be provided by the local authority directly or by another agency, including independent providers.

The audiences for the information and advice service

3.15 Local authorities are responsible for ensuring that all adults including carers in their area with a need for information and advice about care and support are able to access it. This is a very broad group, extending much further than people who have an immediate need for care or support. It will only be achieved through working in partnership with the wider public and local advice and information providers.

3.16 People (carers included) who are likely to need information and advice include, but are not restricted to:

• people wanting to plan for their future care and support needs
• people who may develop care and support needs, or whose current care and support needs may become greater. Under the duty of prevention in Section 2 of the Act, local authorities are expected to take action to prevent, delay and/or reduce the care and support needs for these people (see chapter 2 on prevention)
• people who have not presented to local authorities for assessment but are likely to be in need of care and support. Local authorities are expected to take steps to identify such people and encourage them to come forward for an assessment of their needs (see chapter 2 on prevention)
• people who become known to the local authority (through referral, including self-referral), at first contact where an assessment of needs is being considered (see chapter 6 on assessments)
• people who are assessed by local authorities as currently being in need of care and support. Advice and information must be offered to these people irrespective of whether they have been assessed as having eligible needs which the local authority must meet (see chapter 6 on assessments)
• people whose eligible needs for care and support the local authority is currently meeting (whether the local authority is paying for some, all or none of the costs of meeting those needs) (see chapter 10 on care and support planning)
• people whose care and support or support plans are being reviewed (see chapter 13 on reviews of care and support plans)
• family members and carers of adults with care and support needs, (or those who are likely to develop care and support needs). Under Sections 2 of the Act, local authorities are expected to have regard to the importance of identifying carers and take action to reduce their needs for support (see chapter 6 on assessments)
• adults who are subject to adult safeguarding concerns (see chapter 14 on safeguarding)
• people who may benefit from financial information and advice on matters concerning care and support. Local authorities must have regard to the importance of identifying these people, to help them understand the financial costs of their care and support and access independent financial information and advice including from regulated financial advisers (see para. 3.49)
• care and support staff who have contact with and provide information and advice as part of their jobs

3.17 In providing information and advice, local authorities must recognise and respond to the specific requirements that carers have for both general and personal information and advice. A carer’s need for information and advice may be separate and distinct from information and advice for the person they are caring for. These distinct needs may be covered together, in a similar manner to the local authority combining an assessment of a person needing care and support with a carer’s assessment (where both the individuals concerned agree) (see chapter 6 on assessments), but may be more appropriately addressed separately. This may include information and advice on:

• breaks from caring
• the health and wellbeing of carers themselves
• caring and advice on wider family relationships
• carers’ financial and legal issues
• caring and employment
• caring and education
• a carer’s need for advocacy

Access to and quality of information and advice

3.18 The local authority must ensure that there is an accessible information and advice service that meets the needs of its population. Information and advice must be open to everyone who would benefit from it. People access information and advice from a wide variety of sources. The authority should take account of information standards published by the Information Standards Board for Health and Social Care under the provisions of the Health and Social Care Act 2012.

3.19 Local authorities should ensure that information supplied is clear. Information and advice should only be judged as clear if it is understood and able to be acted upon by the individual receiving it. Local authorities will need to take steps to evaluate and ensure that information and advice is understood and able to be acted upon.

3.20 Information and advice provided within the service should be accurate, up-to-date and consistent with other sources of information and advice. Staff providing information and advice within a local authority and other frontline staff should be aware of accessibility issues and be appropriately trained.

3.21 All reasonable efforts should be taken to ensure that information and advice provided meets the individual’s requirements, is comprehensive and is given at an early stage. Local authorities must seek to ensure that all relevant information is available to people for them to make the best informed decision in their particular circumstances, and omission or the withholding of information would be at odds with the duty as set out in the Act.

3.22 There are some circumstances where it is particularly important for information and advice to be impartially provided. Local authorities should consider when this might most effectively be provided by an independent source rather than by the local authority itself. This is particularly likely to be the case when people need advice about how and whether to question or challenge the decisions of the local authority or other statutory body.

What should be provided – information and advice content

3.23 In discharging this duty, local authorities must ensure that information and advice is provided on:

• the care and support system locally – about how the system works. An outline of what the ‘process’ may entail and the judgements that may need to be made. Including specific information on what the assessment process, eligibility, and review stage is, how to complain or make a formal appeal to the authority, what they involve and when independent advocacy should be provided and be widely available. This also includes wider information and advice to support individual wellbeing (see paragraph 3.25); the charging arrangements for care and support costs (utilising current and developing national resources (see paras. 3.68 to 3.69); how a person might plan for their future care and support needs and how to pay for them, including provision for the possibility that they may not have capacity to make decisions for themselves in the future
• how to access the care and support available locally – where, how and with whom to make contact, including information on how and where to request an assessment of needs, a review or to complain or appeal against a decision
• the choice of types of care and support, and the choice of care providers available in the local authority’s area – including prevention and reablement services and wider services that support wellbeing. Where possible this should include the likely costs to the person of the care and support services available to them. This should also include information on different types of service or support that allow people personal control over their care and support for example, details of Independent Service Funds, and direct payments (see chapter 4 on market shaping and commissioning)
• how to access independent financial advice on matters relating to care and support – about the extent of their personal responsibilities to pay for care and support, their rights to statutory financial and other support, locally and nationally, so that they understand what care and support they are entitled to from the local authority or other statutory providers. Including what information and advice people may wish to consider when making financial decisions about care so that they can make best use of their financial resources and are able to plan for their personal costs of care whether immediately or in the future (see paras. 3.25 to 3.26)
• how to raise concerns about the safety or wellbeing of an adult with care and support needs and also consider how to do the same for a carer with support needs (see paras. 3.53 to 3.54)

3.24 The breadth of the circumstances under which information and advice must be provided, and the overall duty to promote individual wellbeing, means that local authorities must ensure that the subject matters covered by their information and advice available to people in their areas go much further than a narrow definition of care and support and cover all those subject matters listed in paragraph 3.23 above. Depending on local circumstances, the service should also include, but not be limited to, information and advice on:

• available housing and housing-related support options for those with care and support needs
• effective treatment and support for health conditions, including Continuing Health Care arrangements
• availability and quality of health services
• availability of services that may help people remain independent for longer such as home improvement agencies, handyman or maintenance services
• availability of befriending services and other services to prevent social isolation
• availability of intermediate care entitlements such as aids and adaptations
• eligibility and applying for disability benefits and other types of benefits
• availability of employment support for disabled adults
• children’s social care services and transition
• availability of carers’ services and benefits
• sources of independent information, advice and advocacy
• the Court of Protection, power of attorney and becoming a deputy
• raise awareness of the need to plan for future care costs
• practical help with planning to meet future or current care costs
• accessible ways and support to help people understand the different types of abuse and its prevention

When information should be provided

3.25 Local authorities have a number of direct opportunities to provide – or signpost to – advice and information when people in need of care and support come into contact with them. These include:

• at first point of contact with the local authority
• as part of a needs or carer’s assessment, including joint continuing healthcare assessments
• during a period of reablement
• around and following financial assessment
• when considering a financial commitment such as a deferred payment agreement or top-up agreement
• during or following an adult safeguarding enquiry
• when considering take up of a personal budget and/or direct payment
• during the care and support planning process
• during the review of a person’s care and support plan
• when a person may be considering a move to another local authority area
• at points in transition, for example when people needing care or carers under 18 become adults and the systems for support may change

3.26 Local authorities, working with their partners must use the wider opportunities to provide targeted information and advice at key points in people’s contact with the care and support, health and other local services. These include, but are not limited to, known ‘trigger points’ during a person’s life such as:

• contact with other local authority services
• bereavement
• hospital entry and/or discharge
• diagnosis of health conditions – such as dementia, stroke or an acquired impairment for example
• consideration or review of continuing healthcare arrangements
• take-up of power of attorney
• applications to Court of Protection
• application for, or review of, disability benefits such as attendance allowance
• personal independence payments, and for carers allowance
• access to work interviews
• contact with local support groups, charities, or user-led organisations including carers
• groups and disabled person’s organisations
• contact with or use of private care and support services, including homes care
• change or loss of housing
• contact with the criminal justice system
• admission to or release from prison
• ‘Guidance Guarantee’ in the Pensions Act 2014
• retirement

Accessibility of information and advice

3.27 The local authority should ensure that products and materials (in all formats) are as accessible as possible for all potential users. Websites should meet specific standards such as the Web Content Accessibility Guidelines and guidance set out in the Government Digital Service’s (GDS) service manual, printed products should be produced to appropriate guidelines with important materials available in easy read, and telephone services should also be available to those with hearing impairments. Local authorities should particularly be aware of the needs of individuals with complex but relatively rare conditions, such as deaf-blindness.^{[footnote 4]}

3.28 As required under the Equality Act 2010, reasonable adjustments should be made to ensure that disabled people have equal access to information and advice services. Reasonable adjustments could include the provision of information in accessible formats or with communication support.

3.29 Advice and information content should, where possible, be provided in the manner preferred by the person and will therefore often need to be available in a number of different formats. The duty in the Care Act will not be met through the use of digital channels alone, and information and advice channels are likely to include all of the following:

• face-to-face contact
• use of peer-to-peer contacts
• community settings
• advice and advocacy services
• telephone
• mass communications, and targeted use of leaflets, posters (for example: in GP surgeries)
• use of ‘free’ media such as newspaper, local radio stations, social media
• local authority’s own and other appropriate internet websites, including support for the self-assessment of needs
• third party internet content and applications
• email

3.30 Some groups in need of information and advice about care and support may have particular requirements. Local authorities must ensure that their information and advice service has due regard to the needs of these people. These include, but are not limited to:

• people with sensory impairments, such as visual impairment, deafblind and hearing impaired
• people who do not have English as a first language
• people who are socially isolated
• people whose disabilities limit their physical mobility
• people with learning disabilities
• people with mental health problems

3.31 Some people, including some people with dementia, may benefit from an independent person to help them to access or avail themselves of necessary information and advice. Any such need for help to facilitate access to this universal information and advice needs to be considered in planning for delivery of the service, although the duty to make arrangements for an individual to have an independent advocate available to them in certain circumstances only applies in relation to an individual’s involvement in the assessment, planning and review processes. From the point of first contact with or referral to the authority consideration of the duty to provide for independent advocacy to support involvement in assessment, planning and reviews should be undertaken (see chapter 7 on independent advocacy).

Proportionality of information and advice

3.32 The type, extent and timing of information and advice provided should be appropriate to the needs of the person. More complex issues may require more intensive and more personalised information and advice, helping people to understand the choices available to them, while general enquiries may require a less intensive approach. It is also important that the right level of information and advice is provided at the right time, recognising that a person’s need for information or advice may vary depending on the circumstance. For example, providing a person with too much information, more than they can take in, perhaps at a time of crisis, can be counter-productive.

3.33 There are clear messages from past public consultations and from research that people ‘don’t know what they need to know’ in relation to their care and support. This can prevent them asking the right questions and can mask the articulation and identification of needs that they have, for which they could benefit from information and advice. All contact for information and advice should take account of this and be able to respond with an assessment of needs when appropriate (see chapter 6). ^{[footnote 5]}

3.34 Local authorities should help ensure that information and advice is proportionate to the needs of those for whom it is provided. This could include enabling access to the support of registered social work advice for those providing information and advice to people contacting the local authority. This can help ensure that the potential for complexity is recognised early on and the person receives help to access non-statutory services and/or initial statutory sector support proportionate to their needs.

3.35 In providing an information and advice service, local authorities must be providing more than just leaflets and web-based materials. The focus should be on enabling people to access what they need through a tailored range of services that assists people to navigate all points and aspects of their journey through care and support. In doing this, local authorities should think about how they are reaching out and joining up with other providers of information and advice to ensure the coherence of the overall ‘offer’ (see chapter 15 on integration and cooperation).

Financial information and advice

3.36 Financial information and advice is fundamental to enabling people to make well-informed choices about how they pay for their care. It is integral to a person’s consideration of how best to meet care and support needs, immediately or in the future. People with good and impartial financial information and advice have a better understanding of how their available resources can be used more flexibly to fund a wider range of care options.

3.37 Financial information and advice is considered in a separate section due to the sometimes specialist and complex nature of what can be needed. This section should be read in the context of the overarching chapter and all requirements set out in this chapter, for example on accessibility and proportionality, must also be applied to financial information and advice. As set out at the start of the chapter, when this section refers to ‘independent financial information and advice’ it means services independent of the local authority. Where it refers to ‘regulated’ financial advice it means advice from an organisation regulated by the FCA which can extend to individual recommendations about specific financial products.

3.38 The service that local authorities are required to establish and maintain must include financial information and advice on matters relevant to care and support. It should provide some of this information directly to people in its community. However, where it would not be appropriate for a local authority to provide it directly, the local authority must ensure that people are helped to understand how to access independent financial advice.

3.39 Care decisions are often made quickly and at a time of crisis, and they can often involve family and friends in the process. The local authority must have regard to the importance of identifying those who may benefit from financial advice or information as early as possible. This should be complemented by broader awareness raising about how care and support is funded. Local authorities may also include how care and support costs interact with retirement decisions. Actions taken by a local authority to do this should include:

• working with partners to get the right message to people in the authority’s area: those who develop care and support needs, their carers, families and friends
• working with partners to communicate messages about the benefits of financial information and advice for example with the voluntary sector, through hospitals, GPs, or solicitors who may be advising on wills or power of attorney
• considering a person’s need for financial information and advice when they make first contact with the authority and throughout the assessment, care and support planning and review processes

3.40 When making financial plans about how to pay for care and support, a person needs to have confidence in what to do in the present, a view ahead to the future and a plan for what to do if circumstances change. This long-term outlook means that people will want to access financial information and advice at different points in their journey to enable them to make sustainable plans to pay for their care. The local authority should provide a service that covers this breadth and that facilitates access to the full spectrum of financial information and advice – from basic budgeting tips to regulated advice – to ensure that people within its area who would benefit can access it. They should also be aware and provide for the fact that some people will be less able to protect themselves from theft, fraud and financial exploitations (see chapter 14 on safeguarding).

3.41 The local authority service should include the following aspects of financial information and advice:

• understanding care charges
• ways to pay
• money management
• making informed financial decisions
• facilitating access to independent financial information and advice

3.42 Before providing financial information or advice directly to a person the local authority should establish whether the person has a deputy of the Court of Protection or a person with Lasting Power of Attorney acting on their behalf.

Understanding care charges

3.43 The local authority must provide information to help people understand what they may have to pay, when and why and how it relates to people’s individual circumstances. This must include the charging framework for care and support, how contributions are calculated (from both assets and income) and the means tested support available; top-ups (see chapter 8 on charging); and how care and support choices may affect costs. In the case of top-ups, the local authority should ensure that someone is willing and able to pay for them – this information will be fundamental in helping with this. The local authority should use the knowledge it has of the local care market – types of care and local providers of information and advice – to complement and develop the overarching narrative on how care funding works at the national level. This would include both domiciliary and residential care.

Ways to pay

3.44 The local authority must provide people with information on the availability of different ways to pay for care including through income and assets (for example, pension or housing wealth), a deferred payment agreement (see chapter 9 on deferred payment agreements), a financial product or a combination of these things. Local authorities should seek to give information that would be particularly pertinent to a person’s individual circumstances and facilitate access to an independent source of information or advice where relevant. This will be of particular relevance where a person will be meeting the total cost of care and support themselves or may be considering taking out a deferred payment agreement (see chapter 9 on deferred payments) or purchasing a financial product.

Money management

3.45 Different people will need different levels of support from the local authority and other providers of information and advice depending on their financial capability, their care needs and the amount they are expected to contribute. At the lower end of the spectrum, people may just need some basic information and support to help them rebalance their finances in light of their changing circumstances. Topics may include welfare benefits, advice on good money management, help with basic budgeting and possibly on debt management. The local authority may be able to provide some of this information itself, for example on welfare benefits, but where it cannot, it should help people access it.

Making informed financial decisions

3.46 The local authority must support people to make informed, affordable and sustainable financial decisions about their care throughout all stages of their life. In many situations the role of the local authority will be to understand the circumstances of the person, understand their preferences and help them to access the tailored information and advice that they need to make well-informed decisions. Where a person lacks capacity, the authority must establish whether a person has a deputy of the Court of Protection or a person with Lasting Power of Attorney acting on their behalf.

3.47 The local authority must offer to consider a person’s specific circumstances and provide them with information about the methods of paying for their care and support that may be available to them. The local authority may consider the timing and context of any retirement decisions a person might be making and how this interacts with paying for their care and support. They should advise people of the ways to pay that others in similar circumstances would usually consider and the range of information and advice they should be considering to help make their decision.

3.48 To help people access the information and advice they need, the local authority should have a clear view of the information and advice services available locally and what they provide. The local authority should take a role in joining up information and advice organisations locally so they can work collaboratively. The local authority should help information and advice providers and people to understand the role of each information and advice provider so people can access the right provider at the right time and not be sent round in circles. Local authorities should provide and publicise links and information on access to wider sources of information and advice, including those available nationally.

3.49 Local authorities should ensure that staff, including front line staff, are able to support people to access the information and advice they need to make good financial decisions. Staff should have the knowledge to direct people to the financial information and advice they need, explaining the differences and potential benefits from seeking regulated or non-regulated financial advice.

Facilitating access to independent financial information and advice

3.50 A key role for local authorities, when it would be inappropriate to provide it itself, is to facilitate access to financial information and advice which is impartial and independent of a local authority. This should include both generic free and fee-based advice as well as services providing regulated forms of financial advice. ‘Facilitating access’ may include making people aware of specific sources of information and advice that are available and giving information about how to use them. Local authorities should make people aware which independent services may charge for the information and advice they provide. Local authorities should be able to actively describe the general benefits of independent information and advice and, based on what is known of an individual’s circumstance, be able to explain the reasons why it may be beneficial for a person to take independent financial advice.

3.51 Where a person may be considering taking regulated financial advice local authorities are not required or encouraged to make a direct referral to one individual independent financial adviser, but they should actively help and direct a person to a choice of advisers regulated by the Financial Conduct Authority with the appropriate qualifications and accreditation. The local authority should ensure that they do this on a transparent basis.

3.52 Further practice guidance is also available to support local authorities to facilitate access to independent financial information and advice.

Information and advice on adult safeguarding

3.53 The government expects local authorities and others to help people with care and support needs, who may be at risk of abuse or neglect as a result of those needs, keep safe. But this must not mean preventing them making their own choices and having control over their lives. Everyone in the community should understand the importance of safeguarding and help keep people safe (see chapter 14 on safeguarding).

3.54 The local authority must provide information and advice on how to raise concerns about the safety or wellbeing of an adult who has needs for care and support and should support public knowledge and awareness of different types of abuse and neglect, how to keep yourself physically, sexually, financially and emotionally safe, and how to support people to keep safe. The information and advice provided must also cover who to tell when there are concerns about abuse or neglect and what will happen when such concerns are raised, including information on how the local Safeguarding Adults Board works.

Complaints

3.55 Current complaints provision in relation to local authority social services is set out in regulations. ^{[footnote 6]} The provisions of the regulations mean that anyone who is dissatisfied with a decision made by the local authority would be able to make a complaint about that decision and have that complaint handled by the local authority. The local authority must make its own arrangements for dealing with complaints in accordance with the 2009 regulations. As an essential part of how the whole system operates, under the 2009 regulations the local authority’s arrangements must ensure that those who make complaints receive, as far as reasonably practicable, assistance to enable them to understand the complaints procedure or advice on where to obtain such assistance.

Reviewing and developing a plan or strategy

3.56 Local differences and different starting points will mean that each local authority will need to develop and implement a plan regarding their information and advice services that matches their circumstances and meets the needs of its population. The information and advice service should be aligned with wider local authority strategies such as market shaping and commissioning, and with joint area strategies with health. The development of such plans should have regard to some common principles, including:

• involving people who use services and carers, interested organisations and service providers in determining what is needed and how it is provided
• being available at the right time for people who need it, in a range of accessible formats and through a range of channels
• meeting the needs of all groups
• being clear, comprehensive and impartial
• be consistent, accurate and up-to-date
• meeting quality standards, such as the Advice Quality Standard
• being based on a detailed analysis of the needs of the local population served by the local authority
• being commissioned in tandem with other relevant support and independent advocacy services
• avoiding unnecessary duplication
• directing people to sources of further information
• be used to inform future planning
• ensuring appropriate quality assurance and review, including customer feedback to make sure that the service learns from experience and continuously improves

3.57 The plan should build on local and national best practice and make best use of national resources. These national resources include guidance on principles for local information and advice strategies, case studies and practice examples.

3.58 The local authority must exercise its functions under the Care Act, including the duty to provide an information and advice service, with a view to integrating care and support provision with health and health-related issues (including housing). It must also co-operate more generally with each of its relevant partners taking account of their respective functions (see chapter 15 on integration, cooperation and partnerships). The Local Government and Public Involvement in Health Act 2007 (as amended by the Health and Social Care Act 2012), provides that local authorities are under a duty to work with their local CCGs, and other partners through the Health and Wellbeing Board to undertake Joint Strategic Needs Assessments for their areas and to develop Joint Health and Wellbeing Strategies. Statutory Guidance published in March 2013 makes clear that the Joint Strategic Needs Assessment and Joint Health and Wellbeing Strategies must be published, and have specific regard to ‘what health and social care information the community needs, including how they access it and what support they may need to understand it’.

3.59 The development and implementation of a wider plan or strategy on the provision of information and advice on care and support should be led by the local authority, acting as the coordinator and where appropriate the commissioners of information and advice services.

3.60 The development of information and advice plans and their implementation should be an ongoing and dynamic process, involving all relevant stakeholders, rather than a one off occurrence. The plan and the resulting service should adapt to changing needs and as a result of feedback and learning on what works best. The plan should be reviewed at agreed intervals. As a minimum, the process of developing a local plan should include:

• engagement with people, carers and family members, to understand what is working and not working for them, their preferences and how their information advice and advocacy needs can best be met
• adopting a ‘co-production’ approach to their plan, involving user groups and people themselves, other appropriate statutory, commercial and voluntary sector service providers, and make public the plan once finalised
• mapping to understand the range of information, advice and advocacy services, including independent financial advice and different providers available
• coordination with other statutory bodies with an interest in care and support, including local CCGs, Health and Wellbeing Boards, local Healthwatch and neighbouring local authorities
• building into the plan opportunities to record, measure and assess the impact of information and advice services rather than simply service outputs

3.61 In deciding the types of information and advice services to be provided, each local authority will need to analyse and understand the specific needs of its population. Some of the factors and circumstances that local authorities should consider in doing this will often be identified in Joint Strategic Needs Assessments. These factors may include, but are not limited to:

• the ethnic composition of the local area, including languages used
• the identity and nature of hard to reach groups
• the split between those whose care and support is (or is likely to be) arranged or funded by the person and the state
• demographic trends relating to health and care needs, age and disability
• how people access information and advice at the moment and the quality of information and advice services
• an appropriate balance between the needs of its local population for information and the needs people will have for access to advice
• the current sufficiency of supply and the range of information and advice providers from different sectors (including their prospects for growth)

3.62 Local authorities should review and publish information about the effectiveness of the information and advice service locally, including customer satisfaction and may wish to build these into the local Joint Health and Wellbeing Strategies.

3.63 These actions will support local authorities to meet their duties for understanding and promoting the efficient and effective market of services for meeting care and support needs in its area (see chapter 4).

3.64 As part of their plans, local authorities should consider the persons and/or places most likely to come into contact with people in need of information and advice at these and other critical points in the person’s care and support journey. This may be another statutory party, such as a GP or other NHS professional, other professionals, such as a solicitor or funeral director, care and support and housing providers, or a local group, user-led or charitable organisation, rather than the local authority itself. Local authorities should consider whether independent sources of information and advice may in some circumstances be more trusted – and therefore more effective – than the local authority itself (see chapter 15, para. 15.71) ^{[footnote 7]}.

3.65 In addition or instead of direct provision, local authorities should consider whether it is in a person’s best interests that they be signposted, directed or referred to independent sources of information and advice. In particular, people should be signposted to appropriate independent information and advice when they are entering into a legal agreement with a local authority or other third party, such as a deferred payment agreement or committing to a top-up, or they wish to question, challenge or appeal a decision of the local authority or other statutory body.

3.66 People often come into contact with care and support services and need to make important decisions at a time of crisis. A local authority plan should therefore allow for the urgent provision of information and advice when necessary. Local authorities should work with health organisations and other partners to provide targeted information and advice to people in these critical situations and where people have long-term health conditions such as dementia (see paragraph 3.26).

3.67 In their information and advice planning, local authorities will need to weigh up the likely demand and effectiveness of these different channels of communication, some of which will incur substantially higher costs than others. A plan that relies disproportionately on provision of information and advice through the authority’s website, or third party websites, is unlikely to meet the authority’s duty under the Act to establish and maintain a service to provide information and advice on care and support.

3.68 Local authorities will need to consider in their information and advice planning the appropriate interface and balance between local and national sources of information and advice. Where appropriate, local authorities should signpost or refer people to national sources of information and advice where these are recognised as the most useful source. Examples might include:

• the NHS Choices website ^{[footnote 8]} which contains a mix of textual content, videos, and tools such as the online quality profiles of registered care providers in local areas. Local authorities are encouraged to add local sources of information and advice to the online profiles and make sure their local registered care providers add information on the services and support they offer.
• NHS Choices website. Health A to Z, detailed information on specific health conditions and how/where to access health services
• Carers Direct – national telephone helpline: Telephone 0300 123 1053
• Money Advice Service
• the Care Quality Commission
• the Local Government Ombudsman
• consumer websites providing people with information and advice, including on managing their finances well, for example Which? Elderly Care
• national charities and/or advice services supporting people with disabilities or older people and those with expert knowledge of specific conditions (for example, deaf blind). For example, Age UK ; Independent Age; Alzheimer’s Society and Sense, and their national telephone advice/help lines
• national charities and advice services for carers, for example Carers UK or Age UK
• national resources related to housing, accommodation and housing related support, for example FirstStop Advice or Foundations

3.69 Some national providers, for example the Money Advice Service and NHS Choices, may also offer free access to tools, resources and information content that can be integrated into local authority websites or delivered in paper formats. Local authorities are encouraged to explore how they can make the most of cost-effective partnership opportunities with national providers. Referral or signposting to national sources should only occur where this is deemed to be in the best interests of the person and their circumstances and should not take the place of local services necessary for local authorities to discharge their duty under the Act. Local authorities will need to find the appropriate balance between local and national provision to cost-effectively meet their local need.

3.70 Information and advice, whether provided directly by a local authority or by third parties as part of the information and advice service that the local authority establishes and maintains, should be of a good standard and, where appropriate, delivered by trained or suitably qualified individuals.

4. Market shaping and commissioning of adult care and support

This chapter provides guidance on section 5 of the Care Act 2014 and covers:

• the principles which should underpin market-shaping and commissioning activity:
  • focusing on outcomes and wellbeing
  • promoting quality services, including through workforce development and remuneration and ensuring appropriately resourced care and support
  • supporting sustainability
  • ensuring choice
  • co-production with partners
• the steps which local authorities should take to develop and implement local approaches to market-shaping and commissioning:
  • designing strategies that meet local needs
  • engaging with providers and local communities
  • understanding the market
  • facilitating the development of the market
  • integrating their approach with local partners
  • securing supply in the market and assuring its quality through contracting

4.1 High-quality, personalised care and support can only be achieved where there is a vibrant, responsive market of service providers. The role of the local authority is critical to achieving this, both through the actions it takes to commission services directly to meet needs and the broader understanding of and interactions it undertakes with, the wider market, for the benefit of all local people and communities.

4.2 The Care Act places new duties on local authorities to promote the efficient and effective operation of the market for adult care and support as a whole. This can be considered a duty to facilitate the market, in the sense of using a wide range of approaches to encourage and shape it, so that it meets the needs of all people in their area who need care and support, whether arranged or funded by the state, by the individual themselves, or in other ways. The ambition is for local authorities to influence and drive the pace of change for their whole market, leading to a sustainable and diverse range of care and support providers, continuously improving quality and choice, and delivering better, innovative and cost-effective outcomes that promote the wellbeing of people who need care and support.

4.3 The market for care and support services is part of a wider system in which much of the need for care and support is met by people’s own efforts, by their families, friends or other carers, and by community networks. Local authorities have a vital role in ensuring that universal services are available to the whole population and where necessary, tailored to meet the needs of those with additional support requirements (for example housing and leisure services). Market shaping and commissioning should aim to promote a market for care and support that should be seen as broadening, supplementing and supporting all these vital sources of care and support.

4.4 Local authorities should review the way they commission services, as this is a prime way to achieve effective market shaping and directly affects services for those whose needs are met by the local authority, including where funded wholly or partly by the state.

4.5 At a time of increasing pressure on public funds, changing patterns of needs, and increasing aspirations of citizens, together with momentum for integrated services, joint commissioning, and choice for individuals, it is suggested that fundamental changes to the way care and support services are arranged may be needed, driven through a transformation of the way services are led, considered and arranged (PDF, 1.18MB). Commissioning and market shaping are key levers for local authorities in designing and facilitating a healthy market of quality services.

Definitions

4.6 Market shaping means the local authority collaborating closely with other relevant partners, including people with care and support needs, carers and families, to encourage and facilitate the whole market in its area for care, support and related services. This includes services arranged and paid for by the state through the authority itself, those services paid by the state through direct payments, and those services arranged and paid for by individuals from whatever sources (sometimes called ‘self-funders’), and services paid for by a combination of these sources. Market shaping activity should stimulate a diverse range of appropriate high quality services (both in terms of the types of services and the types of provider organisation), and ensure the market as a whole remains vibrant and sustainable.

4.7 The core activities of market shaping are to engage with stakeholders to develop understanding of supply and demand and articulate likely trends that reflect people’s evolving needs and aspirations, and based on evidence, to signal to the market the types of services needed now and in the future to meet them, encourage innovation, investment and continuous improvement. It also includes working to ensure that those who purchase their own services are empowered to be effective consumers, for example by helping people who want to take direct payments make informed decisions about employing personal assistants. A local authority’s own commissioning practices are likely to have a significant influence on the market to achieve the desired outcomes, but other interventions may be needed, for example, incentivising innovation by user-led or third sector providers, possibly through grant funding.

4.8 Commissioning is the local authority’s cyclical activity to assess the needs of its local population for care and support services, determining what element of this needs to be arranged by the authority, then designing, delivering, monitoring and evaluating those services to ensure appropriate outcomes. From the 1990s onwards care services have been increasingly procured from the independent sector (for example, not directly commissioned from and provided by an authority itself) and covered all services that the authority arranged for people receiving state funding. Since 2007 when personalisation became a mainstream policy, commissioning has also covered activity to ensure that sufficient and appropriate services are available to meet the needs of growing numbers of people with personal budgets and direct payments. This has changed the commissioning role, as purchasing decisions have been increasingly devolved to individuals and families and direct procurement using block contracts has reduced. Commissioning has come to be shaped more by the outcomes commissioners and individuals identify, rather than volumes of activity expected and commissioners have sought to facilitate flexible arrangements with providers for other forms of service to support choice and control, such as Individual Service Funds (ISFs).

4.9 Procurement is the specific functions carried out by the local authority to buy or acquire the services which the local authority has a duty to arrange to meet people’s needs, to agreed quality standards so as to provide effective value for money to the public purse and deliver its commissioning strategy.

4.10 Contracting is the means by which that process is made legally binding. Contract management is the process that then ensures that the services continue to be delivered to the agreed quality standards. Commissioning encompasses procurement but includes the wider set of strategic activities.

4.11 This statutory guidance describes, at a high level, the themes and issues that local authorities should have regard to when carrying out duties to shape their local markets and commission services. Market shaping, commissioning, procurement and contracting are inter-related activities and the themes of this guidance will apply to each to a greater or lesser extent depending on the specific activity.

Principles of market-shaping and commissioning

Focusing on outcomes

4.12 Local authorities must ensure that the promotion of the wellbeing of individuals who need care and support, and the wellbeing of carers, and the outcomes they require, are central to all care and support functions in relation to individuals, emphasising the importance of enabling people to stay independent for as long as possible.

4.13 Local authorities will need to understand the outcomes which matter most to people in their area, and demonstrate that these outcomes are at the heart of their local strategies and approaches.

4.14 Local authorities should consider the Adult Social Care Outcomes Framework (ASCOF), in addition to any locally-collected information on outcomes and experiences (for example, from local consumer research), when framing outcomes for their locality and groups of people with care and support needs. Local authorities should have regard to guidance from the Think Local Act Personal (TLAP) partnership when framing outcomes for individuals, groups and their local population, in particular the Making It Real ‘I’ statements, which set out what good personalised care and support should look like from the perspective of people with care and support needs, carers and family members. Outcomes should be considered both in terms of outcomes for individuals and outcomes for groups of people and populations. Local authorities should consider the emerging revised Care Quality Commission standards for quality and any emerging national frameworks for defining outcomes. Local authorities may find the Chartered Institute of Housing’s Service Quality Tool for housing-related services useful. This builds on and updates the Quality Assessment Framework (QAF).

4.15 Local authorities should consider analysing and presenting local needs for services in terms of outcomes required. Local authorities should ensure that achieving better outcomes is central to its commissioning strategy and practices, and should be able to demonstrate that they are moving to contracting in a way that has an outcome basis at its heart. Local authorities should consider emerging best practice on outcomes-based commissioning.

4.16 Outcomes-based services mean developing service arrangements that are defined on the basis of an agreed set of outcomes either for an individual or a group of people. Moving to an outcomes-based approach therefore means changing the way services are bought: from units of provision to meet a specified need (for example, hours of care provided) to what is required to ensure specified measurable outcomes for people are met. The approach should emphasise prevention, enablement, ways of reducing loneliness and social isolation and promotion of independence as ways of achieving and exceeding desired outcomes, as well as choice in how people’s needs are met. Moving to an outcomes-based approach will need to recognise that some outcomes are challenging to assess and local authorities may wish to consider involving service providers when considering how service evaluations can be interpreted. Outcomes should be used as a principal measure for quality assurance of services.

4.17 In encouraging outcomes-based services, consideration should be given to how services are paid for. Local authorities should consider incorporating elements of ‘payments-by-outcomes’ mechanisms, where practical, to emphasise and embed this commissioning approach which is based on specifying the outcomes to be achieved, rather than the service outputs to be delivered. Whilst payments-by-outcomes may be theoretically the most appropriate approach for outcomes-based services, it is recognised that proxies for outcomes may be required to make the approach practical. For example, an outcome an authority may wish to measure might be someone’s personal outcome ‘I want to maintain a nutritious and balanced diet’, but a proxy measure that is observable, attributable and capable of being described, may be the person receiving help with meal preparation at agreed and specified times. Care logs documenting punctual assistance in meal preparation, in conjunction with positive feedback from the person receiving care about support received might be used as part of the basis of payment. It is also recognised that whilst these mechanisms are more commonplace in other types of commissioning, they are in their infancy for adult social care.

4.18 The design of any mechanism should, however, be introduced in cooperation with stakeholders and partners to ensure it is sustainable and ensure that innovation, and individual choice and control are not undermined. Any move to payments by outcomes should be achieved such that smaller, specialist, voluntary sector and community-based providers are not excluded from markets or disadvantaged, because for example, they did not have appropriate IT systems.

4.19 Local authorities should keep under review emerging ideas and best practice about outcomes based commissioning and payments by outcomes. For example:

• Birmngham City Council
• New Economics Foundation (NEF)

Local authorities should have regard to the evolving guidance ‘Commissioning for Better Outcomes’ that was co-produced by the Department of Health, ADASS, LGA together with provider representatives and people with lived experience of care and support. This guidance is intended to support peer review and self-assessment of local authority commissioning, and represents a practical approach that underpins the themes of this statutory guidance.

4.20 Section 2 of the Care Act outlines local authorities’ role in preventing, reducing or delaying the need for care and support. This includes how the authority facilitates and commissions services and how it works with other local organisations to build community capital and make the most of the skills and resources already available in the area. ^{[footnote 10]} Local authorities should consider working not just with traditional public sector partners like health, but also with a range of other partners to engage with communities to understand how to prevent problems from arising. ^{[footnote 11]}

Promoting quality

4.21 Local authorities must facilitate markets that offer a diverse range of high-quality and appropriate services. In doing so, they must have regard to ensuring the continuous improvement of those services and encouraging a workforce which effectively underpins the market through:

• standards
• skills
• qualifications and apprenticeships

The quality of services provided and the workforce providing them can have a significant effect on the wellbeing of people receiving care and support, and that of carers, and it is important to establish agreed understandable and clear criteria for quality and to ensure they are met.

4.22 When considering the quality of services, local authorities should be mindful of the capacity, capability, timeliness, continuity, reliability and flexibility of services delivered to support wellbeing, where appropriate, using the definitions that underpin the CQC’s fundamental standards of care as a minimum, and having regard to the ASCOF framework of population outcomes. High quality services should enable people who need care and support, and carers, to meet appropriate personal outcome measures, for example, a domiciliary care service which provides care 2 days a week so that a carer who normally provides care can go to work, is not a quality service if it is not available on the specified days, or the care workers do not arrive in time to allow the carer to get to work on time.

4.23 Local authorities should also consider other relevant national standards including those that are aspirational, for example, any developed by the National Institute of Health and Care Excellence (NICE). ^{[footnote 12]}

4.24 Local authorities should encourage a wide range of service provision to ensure that people have a choice of appropriate services; appropriateness is a fundamental part of quality. For example, a working age person should be able to choose care and support tailored for their situation, and not be faced with only a choice of facilities designed for older people, as this is unlikely to be appropriate to their situation, regardless of how high quality the facilities may be in their own contexts. Appropriate services will meet people’s needs and reasonable preferences.

4.25 When arranging services themselves, local authorities must ensure their commissioning practices and the services delivered on their behalf comply with the requirements of the Equality Act 2010, and do not discriminate against people with protected characteristics; this should include monitoring delivery against the requirements of that Act. When shaping markets for services, local authorities should work to ensure compliance with this Act for services provided in their area that are not arranged and/or paid for by them. Local authorities should consider care and support services for their appropriateness for people from different communities, cultures and beliefs.

4.26 Local authorities should encourage services that respond to the fluctuations and changes in people’s care and support needs, for example someone with fluctuating mobility or visual impairment. Local authorities should support the transition of services throughout the stages of people with care and support needs’ lives to ensure the services provided remain appropriate. This is particularly important, for example, for young people with care and support needs and young carers transitioning to adulthood.

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Example: Ensuring provision of appropriate services

Young people move from children’s to adult care and support or providing support for situations where young carers become adults

For instance, many young people with learning disabilities leave full-time education at around this age and require new forms of care and support to live independently thereafter. Ensuring that services are made available to meet those needs is better for the quality of life of the young person in question. This could include things such as employment support, training, developing friendships or advice on housing options. It is equally important to think about ways of supporting carers at this time: some parent carers need extra support to juggle caring and paid work after their child leaves full time education. Loss of paid employment can have a significant impact on the carer’s wellbeing and self-esteem as well as a significant impact on the family’s financial circumstances. Similar issues can affect young carers. Taking a whole family approach to care and support planning that sets out a ‘five-day offer’ or appropriate supported living options for a young person, and support for a carer to manage an increased caring role (that allows them to stay in paid work if they wish to do so) can help families manage the transition and save money by avoiding unwanted out-of-county placements.

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4.27 Local authorities should commission services having regard to the cost-effectiveness and value for money that the services offer for public funds. The Local Government Association Adult Social Care Efficiency Programme has advice on these issues and may be helpful.

4.28 People working in the care sector play a central role in providing high quality services. Local authorities must consider how to help foster, enhance and appropriately incentivise this vital workforce to underpin effective, high quality services. ^{[footnote 13] [footnote 14]}

4.29 Local authorities should consider, in particular, how to encourage training and development for the care and support workforce, including for the management of care services, through, for example, national standards recommended by Skills for Care:

• Care Quality Commission regulations
• care certificate
• manager induction standards
• national occupational standards

And have regard to funding available through grants to support the training of care workers in the independent sector:

• an example of collaborative training by Surrey, East Sussex & Brighton & Hove
• Workforce Development Fund
• Individual Employer Funding
• Workforce Development Innovation Fund
• Social Work - assessed and supported year in employment

Local authorities should consider encouraging the training and development of care worker staff to at least the standard of the emerging Care Certificate currently being developed by Health Education England, Skills for Care and Skills for Health.

4.30 When commissioning services, local authorities should assure themselves and have evidence that service providers deliver services through staff remunerated so as to retain an effective workforce. Remuneration must be at least sufficient to comply with the national minimum wage legislation for hourly pay or equivalent salary. This will include appropriate remuneration for any time spent travelling between appointments. Guidance on these issues can be found on the HMRC website.

4.31 When commissioning services, local authorities should assure themselves and have evidence that contract terms, conditions and fee levels for care and support services are appropriate to provide the delivery of the agreed care packages with agreed quality of care. This should support and promote the wellbeing of people who receive care and support, and allow for the service provider ability to meet statutory obligations to pay at least the national minimum wage and provide effective training and development of staff. It should also allow retention of staff commensurate with delivering services to the agreed quality, and encourage innovation and improvement. Local authorities should have regard to guidance on minimum fee levels necessary to provide this assurance, taking account of the local economic environment. This assurance should understand that reasonable fee levels allow for a reasonable rate of return by independent providers that is sufficient to allow the overall pool of efficient providers to remain sustainable in the long term. The following tools may be helpful as examples of possible approaches:

• UKHCA Minimum Price for Homecare
• Laing and Buisson toolkit to understand fair price for residential care
• ADASS paying for care calculator

4.32 Local authorities should ensure that they themselves have functions and systems in place to fulfil their duties on market shaping and commissioning that are fit for purpose, with sufficient capacity and capability of trained and qualified staff to meet the requirements set out in the Care Act and this statutory guidance. In particular, local authorities should encourage relevant staff to be trained or developed to meet the National Skills Academy standards and programmes of training for care and support commissioners ‘Commissioning Now’, or equivalent, and appropriate standards for commissioning related services such as housing services where appropriate. Local authorities should consider the skills and capabilities needed to support new approaches to commissioning, for example, outcomes-based and integrated commissioning. Local authorities should have regard to the emerging skill levels and qualifications being developed for commissioning staff by Skills for Care.

Supporting sustainability

4.33 Local authorities must work to develop markets for care and support that - whilst recognising that individual providers may exit the market from time to time - ensure the overall provision of services remains healthy in terms of the sufficiency of adequate provision of high quality care and support needed to meet expected needs. This will ensure that there are a range of appropriate and high quality providers and services for people to choose from.

4.34 Local authorities should understand the business environment of the providers offering services in their area and seek to work with providers facing challenges and understand their risks. Where needed, based on expected trends, local authorities should consider encouraging service providers to adjust the extent and types of service provision. This could include signalling to the market as a whole the likely need to extend or expand services, encourage new entrants to the market in their area, or if appropriate, signal likely decrease in needs – for example, drawing attention to a possible reduction in care home needs, and changes in demand resulting from increasing uptake of direct payments. The process of developing and articulating a Market Position Statement or equivalent should be central to this process.

4.35 Local authorities should consider the impact of their own activities on the market as a whole, in particular the potential impact of their commissioning and re-commissioning decisions, and how services are packaged or combined for tendering, and where they may also be a supplier of care and support. The local authority may be the most significant purchaser of care and support in an area, and therefore its approach to commissioning will have an impact beyond those services which it contracts. Local authorities must not undertake any actions which may threaten the sustainability of the market as a whole, that is, the pool of providers able to deliver services of an appropriate quality, for example, by setting fee levels below an amount which is not sustainable for providers in the long-term.

4.36 Local authorities should have effective communications and relationships with providers in their area that should minimise risks of unexpected closures and failures, and have effective interaction and communication with the Care Quality Commission (CQC) about the larger and most difficult to replace providers that CQC will provide financial oversight for. Local authorities should review the intelligence they have about the sustainability of care providers drawn from market shaping, commissioning and contract management activities. ^{[footnote 15]} Where the authority believes there is a significant risk to a provider’s financial viability, and where they consider it would be in the best interests of service users, the authority should consider what assistance may be provided or brokered to help the provider return to viability, and consider what actions might be needed were that provider to fail. For example, where a local authority has arranged services for people with a provider that appears to be at risk, undertaking early planning to identify potential replacement service capacity. Where it is apparent to a local authority that a provider is likely to imminently fail financially, either through its own intelligence or through information from the CQC, the authority should prepare to take steps to ensure continuity of care and support for people who have their care and support provided by that provider (see chapter 5 on managing provider failure).

Ensuring choice

4.37 Local authorities must encourage a variety of different providers and different types of services. This is important in order to facilitate an effective open market, driving quality and cost-effectiveness so as to provide genuine choice to meet the range of needs and reasonable preferences of local people who need care and support services, including for people who choose to take direct payments, recognising, for example, the challenges presented in remote rural areas for low volume local services.

4.38 Local authorities must encourage a range of different approaches to services to ensure people have a genuine choice of different types of service. This may be achieved by encouraging different types of service provider organisation, for example, independent private providers, third sector, voluntary and community based organisations, including user-led organisations, mutual and small businesses. Local authorities should note that the involvement of people with specific lived experience of the type of needs being met, may lead to better outcomes for people who use services and carers as they directly empathise with service users. This should recognise that the different underpinning philosophies, cultural sensitivity and style of service of these organisations may be more suited to some people with care and support needs. Local authorities should consider encouraging and supporting providers or taking other steps to promote an appropriate balance of provision between types of provider, having regard to competition rules and the need for fairness and legal requirements for all potential providers who may wish to compete for contracts. The TLAP guidance commissioning for provider diversity may be helpful to commissioners.

4.39 When commissioning services to meet people’s eligible needs, where a local authority develops approved lists and frameworks that are used to limit the number of providers they work with, for example within a specific geographical area or for a particular service type to achieve strategic partnerships and value for money, the local authority must consider how to ensure that there is still a reasonable choice for people who need care and support.

4.40 For universally available services - for example, prevention - where the local authority does not have a duty to directly arrange services, it should have regard to facilitating this market through market shaping activity to encourage a diversity of service provision. If the authority decides to augment such universal services by directly contracting itself with one or more provider organisations, it should nevertheless continue to ensure that the overall mix of available services presents meaningful choice to people who need these services.

4.41 Local authorities should encourage a genuine choice of service type, not only a selection of providers offering similar services, encouraging, for example, a variety of different living options such as shared lives, extra care housing, supported living, support provided at home, and live-in domiciliary care as alternatives to homes care, and low volume and specialist services for people with less common needs. Local authorities may find the TLAP guidance ‘Top Tips: commissioning for market diversity’ helpful.

4.42 Choice for people who need care and support and carers should be interpreted widely. Local authorities should encourage choice over the way services are delivered, examples would include: developing arrangements so that care can be shared between an unpaid carer or relative and a paid care worker, a choice over when a service is delivered, choice over who is a person’s key care worker, arranging for providers to collaborate to ensure the right provision is available, for example, a private provider and a voluntary organisation working together, choice over when a service is delivered. ^{[footnote 16]}

4.43 Local authorities must have regard to ensuring a sufficiency of provision – in terms of both capacity and capability – to meet anticipated needs for all people in their area needing care and support – regardless of how they are funded. This will include regularly reviewing trends in needs including multiple and complex needs, outcomes sought and achieved, and trends in supply, anticipating the effects and trends in prevention and community-based assets, and through understanding and encouraging changes in the supply of services and providers’ business and investment decisions. ^{[footnote 17]}

4.44 When considering the sufficiency and diversity of service provision, local authorities should consider all types of service that are required to provide care and support for the local authority’s whole population, including, for example:

• support services and universal and community services that promote prevention
• domiciliary (home) care
• homes and other types of accommodation care
• nursing care
• live-in care services
• specialist care
• support for carers
• reablement services
• sheltered accommodation and supported living
• shared lives services
• other housing options
• community support
• counselling
• social work
• information, brokerage, advocacy and advice services
• direct payment support organisations

4.45 This will include keeping up to date with innovations and developments in services, networking through for example, the Association of Directors of Adult Social Services (ADASS), TLAP, and the Local Government Association (LGA).

4.46 Local authorities should facilitate the personalisation of care and support services, encouraging services (including small, local, specialised and personal assistant services that are highly tailored), to enable people to make meaningful choices and to take control of their support arrangements, regardless of service setting or how their personal budget is managed. Local authorities should have regard to the TLAP partnership agreement that sets out how shaping markets to meet people’s needs and aspirations, including housing options, can promote choice and control. Alongside the suitability of living accommodation in Section 1 of the Act, Local authorities should consider how they can encourage the development of accommodation options that can support choice and control and promote wellbeing. Personalised care and support services should be flexible so as to ensure people have choices over what they are supported with, when and how their support is provided and wherever possible, by whom. The mechanism of Individual Service Funds by service providers, which are applicable in many different service types, can help to secure these kinds of flexibilities for people and providers.

4.47 Local authorities should help people who fund their own services or receive direct payments, to ‘micro-commission’ care and support services and/or to pool their budgets, and should ensure a supporting infrastructure is available to help with these activities. Many local authorities, for example, are utilising web-based systems such as e-Marketplaces for people who are funding their own care or are receiving direct payments to be able to search for, consider and buy care and support services on-line, consider joint purchases with others. This often involves offering information and advice about, for example, the costs and quality of services and information to support safeguarding. This should include facilitating organisations that support people with direct payments and those whose care is funded independently from the local authority to become more informed and effective consumers and to overcome potential barriers such as help to recruit and employ personal assistants and to assist in overcoming problems and issues. This activity should help to match people’s wider needs with services.

4.48 Local authorities must facilitate information and advice to support people’s choices for care and support. This should include where appropriate through services to help people with care and support (PDF, 1.09MB) needs understand and access the systems and processes involved and to make effective choices. This is a key aspect of the new duty to establish and maintain a universal information and advice service locally as set out in Section 4 of the Care Act. Information and advice services should be reviewed for effectiveness using people’s experiences and feedback. This feedback forms part of the overall information a local authority considers about people’s needs and aspirations.

4.49 Local authorities should facilitate local markets to encourage a sufficiency of preventative, enablement and support services, including support for carers to make caring more sustainable, such as interpreters, signers and communicator guides, and other support services such as ‘telecare’, home maintenance and gardening that may assist people achieve more independence and supports the outcomes they want.

4.50 Local authorities should encourage flexible services to be developed and made available that support people who need care and support, and carers who need support, to take part in work, education or training. Services should be encouraged that allow carers who live in one local authority area but care for someone in another local authority area to access services easily, bearing in mind guidance on ordinary residence.

Co-production with stakeholders

4.51 Local authorities should pursue the principle that market shaping and commissioning should be shared endeavours, with commissioners working alongside people with care and support needs, carers, family members, care providers, representatives of care workers, relevant voluntary, user and other support organisations and the public to find shared and agreed solutions. This should be in line with the Building Capacity and Partnership in Care Agreement. The TLAP guidance on co-production may be helpful, in particular the web-based tool People not process – Co-production in Commissioning.

Developing local strategies

4.52 Commissioning and market shaping should be fundamental means for local authorities to facilitate effective services in their area and it is important that authorities develop evidence-based local strategies for how they exercise these functions, and align these with wider corporate planning. Local authorities should have in place published strategies that include plans that show how their legislative duties, corporate plans, analysis of local needs and requirements (integrated with the Joint Strategic Needs Assessment and Joint Health and Wellbeing Strategy), thorough engagement with people, carers and families, market and supply analysis, market structuring and interventions, resource allocations and procurement and contract management activities translate (now and in future) into appropriate high quality services that deliver identified outcomes for the people in their area and address any identified gaps. ^{[footnote 18]}

4.53 Since 2007 there has been a duty on local authorities and latterly clinical commissioning groups, through health and wellbeing boards, to undertake Joint Strategic Needs Assessments (JSNA). JSNA is a process that assesses and maps the needs and demand for health and care and support, supports the development of joint Health and Wellbeing Strategies to address needs, understands community assets and informs commissioning of local health and care and support services that together with community assets meet needs.

4.54 Market shaping and commissioning intentions should be cross-referenced to JSNA, and should be informed by an understanding of the needs and aspirations of the population and how services will adapt to meet them. Strategies should be informed by and emphasise preventative services that encourage independence and wellbeing, delaying or preventing the need for acute interventions. Statutory guidance on JSNA and Joint Health and Wellbeing Strategies (PDF, 180KB) was published in March 2013. The ambition is for market shaping and commissioning to be an integral part of understanding and delivering the whole health and care economy, and to reflect the range and diversity of communities and people with specific needs, in particular:

• people needing care and support themselves (through for example, consumer research)
• carers
• carer support organisations
• health professionals
• care and support managers and social workers (and representative organisations for these groups)
• relevant voluntary, user and other support organisations
• independent advocates
• the wider local population
• provider organisations (including where appropriate housing providers)
• other tiers of local government

4.55 A co-produced approach will stress the value of meaningful engagement with people at all stages, through design, delivery and evaluation, rather than simply as ‘feedback’. Local authorities should publish and make available their local strategies for market shaping and commissioning, giving an indication of timescales, milestones and frequency of activities, to support local accountability and engagement with the provider market and the public.

4.56 It is suggested that a local authority can best commence its duties under Sections 5 (market shaping and commissioning) and 48 to 52 (provider failure) of the Care Act by developing with providers and stakeholders a published Market Position Statement. It may be helpful for Market Position Statements from neighbouring local authority areas to be coordinated to ensure a degree of consistency for people who will use the documents; this is particularly true for urban areas.

4.57 Local authorities should review strategies related to care and support together with stakeholders to ensure they remain fit for purpose, learn lessons, and adapt to incorporate emerging best practice, noting that peer review has a strong track record in driving improvement. It is suggested that reporting against strategies for care and support should form part of the local authority’s Local Account.

4.58 Many public sector bodies, including local authorities, have radically transformed services by reconsidering commissioning in a strategic context. The Government’s Commissioning Academy is working to promote such transformational approaches and local authorities should have regard to the emerging best practice it is producing.

4.59 Developing a diverse market in care and support services can boost employment and create opportunities for local economic growth, through for example, increasing employment opportunities for working-age people receiving care and carers, and developing the capacity of the care workforce. Local authorities should consider how their strategies related to care and support can be embedded in wider local growth strategies, for example, engaging care providers in local enterprise partnerships.

4.60 Recognising that changes to adult care and support are taking place at a time of the need to deliver services from constrained resources, local authorities should have regard to best practice on efficiency and value for money, in particular the LGA’s Adult Social Care Efficiency Programme.

4.61 Local authority strategies should adhere to general standards, relevant laws and guidance, including the Committee of Standards in Public Life principles of accountability (PDF, 1MB), regularity and ensuring value for money alongside quality, and the HM Treasury guidance on managing public money.

4.62 Local authorities should develop standards on transparency and accountability to ensure citizens are able to contribute to and understand policy and review delivery. Standards should be in line with the codes of practice drawn up by the Department of Communities and Local Government.

4.63 Local authorities should take the lead to engage with a wide range of stakeholders and citizens in order to develop effective approaches to care and support, including through developing the JSNA and a Market Position Statement. While the duties under section 5 of the Care Act fall upon local authorities, successful market shaping is a shared endeavour that requires a range of coordinated action by commissioners and providers, working together with the citizen at the centre. Local authorities should engage and cooperate with stakeholders to reflect the range and diversity of communities and people with specific needs, for example:

• people needing care and support themselves and their representative organisations
• carers and their representative organisations
• health professionals
• social care managers and social workers
• independent advocates
• support organisations that help people who need care consider choices (including financial options)
• provider organisations (including where appropriate private housing providers and registered social landlords)
• the wider local population including individuals and communities who are less frequently heard (for example, LGBT communities where there may be a lack of data on care and support needs and preferences) or at risk from exclusion, including those who have communication issues and involving representatives of those who lack mental capacity ^{[footnote 19]}.

4.64 Engagement with people needing care and support, people likely to need care and support, carers, independent advocates, families and friends, should emphasise understanding the needs of individuals and specific communities, what aspirations people have, what outcomes they would like to achieve, their views on existing services and how they would like services to be delivered in the future. ^{[footnote 20]} It should also seek to identify the types of support and resources or facilities available in the local community which may be relevant for meeting care and support needs, to help understand and build community capacity to reinforce the more formal, regulated provider market. In determining an approach to engagement, local authorities should consider methods that enable people to contribute meaningfully to:

• setting the strategic direction for market shaping and commissioning
• engaging in planning – using methods that support people to identify problems and solutions, rather than relying on ‘downstream’ consultation
• identifying outcomes and setting priorities for specific services
• setting measures of success and monitor on-going service delivery, including through the experience of people who use services and carers
• playing a leading role throughout tendering and procurement processes, from developing specifications to evaluating bids and selecting preferred providers
• contributing to reviews of services and strategies that relate to decommissioning decisions and areas for new investment
• managing any changes to service delivery, recognising that long-term relationships may have developed in the community and with individual people receiving care and support and carers

4.65 Engagement with service providers should emphasise understanding the organisation’s strategies, risks, plans, and encourage building trusting relationships and fostering improvement and innovation to better meet the needs of people in the area. Local authorities should consider engagement with significant suppliers of services to provider organisations, where this would help improve their understanding of markets, for example, engaging with employment and training services that might enable local authorities to gain access to frontline insights on care provision and the local workforce supply and training.

4.66 Local authorities should ensure that active engagement and consultation with local people is built into the development and review of their strategies for market shaping and commissioning, and is demonstrated to support local accountability (for example, via the Local Account).

4.67 Local authorities should engage positively with provider organisations to ensure fair play and necessary confidentiality. The Think Local Act Personal (TLAP) partnership has produced guidance that may assist in the process – Stronger Partnerships for Better Outcomes and Commissioning the future: start a new conversation. Local authorities may also find the IPC ‘Market shaping toolkit (MaST): supporting local authority and SME care provider innovation and collaboration’ useful in supporting positive engagement with providers.

4.68 Local authorities should make available to providers available routes to register concerns or complaints about engagement and commissioning activities. Local authorities should consider the adequacy and effectiveness of these routes and processes as part of their engagement and trust-building activities.

Undertaking market shaping and commissioning

Understanding the market

4.69 Local authorities must understand local markets and develop knowledge of current and future needs for care and support services, and, insofar as they are willing to share and discuss, understand providers’ business models and plans. This is important so that authorities can articulate likely trends in needs and signal to the market the likely future demand for different types of services for their market as a whole, and understand the local business environment, to support effective commissioning. Activities to understand the market should appropriately reflect an authority’s strategic plans for integrating health, social care and related services and will require the cooperation of those other parties, as well as other authorities in the region, to ensure a complete picture.

4.70 Local authorities (through an engagement process, in concert with commissioners for other services where appropriate) should understand and articulate the characteristics of current and future needs for services. This should include reference to underpinning demographics, drivers and trends, the aspirations, priorities and preferences of those who will need care and support, their families and carers, and the changing care and support needs of people as they progress through their lives. This should include an understanding of:

• people with existing care needs drawn from assessment records
• carers with existing care needs drawn from carers’ assessment records
• new care and support needs
• those whose care and support needs will transition from young people’s services to adult services
• those transitioning from working-age adults to services for older people
• people whose care and support needs may fluctuate
• people moving to higher needs and specialised care and support
• those that will no longer need care and support

4.71 It should include information and analysis of low incidence needs and multiple and complex conditions as well as more common conditions such as sensory loss. The RNIB has a tool to help local authorities scope the needs of people with sight impairment. It should also include information about likely changes in requirements for specialist housing required by people with care and support needs. The online tool SHOP@ developed by the Housing Learning and Improvement Network may be helpful.

4.72 Local authorities should have in place robust methods to collect, analyse and extrapolate this information about care and support needs, including as appropriate information about specific conditions (for example, neurological conditions such as Stroke, Parkinson’s, and Motor Neurone Disease), and multiple and complex needs. This should sit alongside information about providers’ intentions to deliver support over an appropriate timescale – likely to be at least 5 years into the future, with alignment to other strategic timeframes. Data collection should include information on the quality of services provided in order to support local authority duties to foster continuous improvement. This could be achieved, for example, by collecting and acting on feedback from people who receive care, their families and carers alongside information on the specific nature of the services people receive (for example, regularity and length of homecare visits). This will allow for an assessment of correlation between customer experience and service provision. Data collection must be sufficient to allow local authorities to meet their duties under the Equality Act 2010.

4.73 Local authorities should include in their engagement and analysis, services and support provided by voluntary, community services, supported housing providers, and other groups that make up ‘community assets’ and plan strategically to encourage, make best use of and grow these essential activities to integrate them with formal care and support services.

4.74 Local authorities should also seek to understand trends and changes to the levels of support that are provided by carers, and seek to develop support to meet their needs, noting that amongst other sources, census data include information on carers and their economic activity. Local authorities should understand the trends and likely changes to the needs of carers in employment, so as to better plan future support.

4.75 In order to understand future trends in needs and demands, local authorities should include an understanding of people who are or are likely to be both wholly or partly state funded, and people who are or are likely to be self-funding. It should also include an analysis of those self-funding people who are likely to move to state funding in the future.

4.76 The understanding of needs should also include an understanding of the likely demand for state-funded services that the local authority will need to commission directly, and state-funded services likely to be provided through direct payments and require individuals to ‘micro-commission’ services. Local authorities should also consider the extent to which people receiving services funded by the state may wish to ‘top up’ their provision to receive extra services or premium services – that is, the assessment of likely demand should be for services that people are likely to need and be prepared to pay for through top ups.

4.77 The assessment of needs should be integrated with the process of developing, refining and articulating a local authority’s Joint Strategic Needs Assessment. Where appropriate, needs should be articulated on an outcomes basis.

4.78 In order to gather the necessary information to shape its market, local authorities should engage with providers (including the local authority itself if it directly provides services) to seek to understand and model current and future levels of service provision supply, the potential for change in supply, and opportunities for change in the types of services provided and innovation possible to deliver better quality services and greater value for money. Local authorities should understand the characteristics of providers’ businesses, their business models, market concentration, investment plans. Information about both supply and expected demand for services should be made available publicly to help facilitate the market and empower communities and citizens when considering care and support. Smaller care providers should be included in engagement. Local authorities may find helpful the guidance Supporting Local Authority and SME Care Provider Innovation and Collaboration that was co-produced by the Department of Health with ADASS and LGA, provider organisations and people with lived experience.

4.79 Assessment of supply and potential demand should include an awareness and understanding of current and future service provision and potential demand from outside the local authority area where this is appropriate, for example in considering services to meet highly specialised and complex needs, care and support may not be available in the local authority area, but only from a small number of specialised providers in the country. Consideration should be given to whether such services might better be commissioned and facilitated regionally.

Facilitating the development of the market

4.80 Local authorities should collaborate with stakeholders and providers to bring together information about needs and demands for care and support with that about future supply, to understand for their whole market the implications for service delivery. This will include understanding and signalling to the market as a whole the need for the market to change to meet expected trends in needs, adapt to enhance diversity, choice, stability and sustainability, and consider geographic challenges for particular areas. To this picture, local authorities should add their own commissioning strategy and future likely resourcing for people receiving state-funding. Local authorities should consider co-ordinating these market shaping and related activities with other neighbouring authorities where this would facilitate better outcomes.

4.81 Local authorities should consider how to support and empower effective purchasing decisions by people who self-fund care or purchase services through direct payments, recognising that this can help deliver a more effective and responsive local market.

4.82 Local authorities should ensure that the market has sufficient signals, intelligence and understanding to react effectively and meet demand, a process often referred to as market structuring or signalling. Local authorities should publish, be transparent and engage with providers and stakeholders about the needs and supply analysis to assist this signalling. It is suggested that this is best achieved through the production and regular updating of a document like a Market Position Statement that clearly provides evidence and analysis and states the local authority’s intent. A Market Position Statement is intended to encourage a continuing dialogue between a local authority, stakeholders and providers where that dialogue results in an enhanced understanding by all parties is an important element of signalling to the market.

4.83 A Market Position Statement should contain information on: the local authority’s direction of travel and policy intent, key information and statistics on needs, demand and trends, (including for specialised services, personalisation, integration, housing, community services, information services and advocacy, and carers’ services), information from consumer research and other sources about people’s needs and wants, information to put the authority’s needs in a national context, an indication of current and future authority resourcing and financial forecasts, a summary of supply and demand, the authority’s ambitions for quality improvements and new types of services and innovations, and details of, or cross-references to the local authority’s own commissioning intentions, strategies and practices ^{[footnote 22]}.

4.84 Developing and then making publicly available a Market Position Statement is one way a local authority can meet its duties to make available information about the local market, and demonstrates activity to meet the other parts of Section 5 of the Act. The DCMQC web pages include exemplar Market Position Statements and links to examples of good practice. Market Position Statements for care and support services should combine, cross-refer or otherwise complement other similar statements for related services, particularly where there is an integrated approach or ambition, for example, housing. The paper from the Housing Learning and Improvement Network on developing MPS for housing services may be helpful.

4.85 As part of developing and publishing a document like a Market Position Statement, local authorities should engage with stakeholders and partners to structure their markets. This could include:

• discussions with potential providers
• actively promoting best practice and models of care and support
• understanding the business planning cycles of providers
• aligning interactions and supporting the provider’s business planning
• identifying and addressing barriers to market entry for new providers
• facilitating entry to the market through advice and information
• streamlining the authority’s own procurement processes
• promoting diversification of provider organisations
• working with providers on an ‘open-book accounting’ approach ^{[footnote 23]} to cost current and future services and ensure provider sustainability
• supporting providers through wider local authority activity – planning, business support and regeneration

4.86 Local authorities may consider that market structuring activity – signalling to the market and providing assistance – is not achieving the strategic aims as quickly or as effectively as needed, and may wish to consider more direct interventions in the market. Market interventions may also be planned as part of the market shaping and commissioning strategies where there is an immediate need for intervention.

4.87 Market interventions could for example include: refocusing local authority business support initiatives onto the care and support sector, exploring how local care and support projects could attract capital investments and support and what guarantees may be needed, encouraging and supporting social enterprises, micro-enterprises, Community Interest Companies, and User-Led Organisations (for example, incentivising innovation by third sector providers, possibly through grant funding), exploring planning barriers and using planning law, offering access to training and development opportunities.

4.88 Local authorities should consider monitoring progress toward the ambitions set out in the Market Position Statement, and making that progress public along with information about its own commissioning decisions, as part of a commitment to transparency and accountability. This would demonstrate that the authority’s commissioning activity is in line with the ambition and direction of travel articulated in its Market Position Statement, and might be achieved by including this information in regular updates to the Market Position Statement.

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Case Study Facilitating the market

Warwickshire Council’s Market Position Statement for Older People identified a significant growth in the number of people living with dementia in the county, coupled with a declining trend in the number of people accessing traditional day services in the previous 4 to 5 years. Day services provide stimulation for the person living with dementia as well as a break for the person’s carer.

Following this the Council undertook a full review of Dementia Community Support. This included evaluating the role of services funded by the NHS and the Council and also those provided directly by the voluntary and community sector.

The Council held an engagement event to establish what customers and carers want dementia Community Support services to look like and deliver. This identified the gaps between supply and demand in more detail and at a local level. The event also gathered information from providers and voluntary and community groups about the challenges of delivering services. Providers identified commissioning models which promote strong and stable service delivery whilst still allowing flexible responses to meet individual needs as particularly useful. As a result of this activity, the Council is now in the process of procuring a new service model for Dementia Community Support. The model will include information and advice, community services, building-based respite and specialist support.

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Promoting integration with local partners

4.89 The Health and Social Care Act 2012 sets out specific obligations for the health system and its relationship with care and support services. It gives a duty to NHS England, clinical commissioning groups, Monitor and Health and Wellbeing Boards to make it easier for health and social care services to work together to improve outcomes for people. Section 3 of the Care Act places a corresponding duty on local authorities to carry out their care and support functions with the aim of integrating services with those provided by the NHS or other health-related services, such as housing.

4.90 Local authorities should also consider working with appropriate partners to develop integration with services related to care and support such as housing, employment services, transport, benefits and leisure services. Local authorities should prioritise integration activity in areas where there is evidence that effective integration of services materially improves people’s wellbeing, for example, end of life care, and should take account of the key national and local priorities and objectives of the Better Care Fund, for example, stopping people reaching crisis and reducing the emergency admissions to hospitals.

4.91 Integrated services built around an individual’s needs are often best delivered through the home. The suitability of living accommodation is a core component of an individual’s wellbeing and when developing integrated services, local authorities should consider the central role of housing within integration, with associated formal arrangements with housing and other partner organisations.

4.92 Local authorities should work towards providing integrated care and support, providing services that work together to provide better outcomes for individuals who need care and support and enhancing their wellbeing, noting that this will require the sharing of information about current and future needs and likely service provider’s responses to underpin a holistic approach to developing integrated care and support pathways. Further information can be found in the chapters of this statutory guidance on integration (chapters 15 to 18). NHS guidance and LGA case studies on integration may be helpful, together with the toolkit for integration developed by North West London Whole System Integrated Care (particularly chapter 7 on budget pooling, governance arrangements and commissioning issues in general).

4.93 Local authorities should consider with partners, the enabling activities, functions and processes that may facilitate effective integrated services. For example Bexley LA and CCG joint commissioning of preventative services. These will include consideration of: joint commissioning strategies, joint funding, pooled budgets, lead commissioning, collaborative commissioning, working with potential service providers to consider innovative ways of arranging and delivering services, and making connections to public health improvement.

Securing supply in the market and assuring its quality and value for money through contracting

4.94 Local authorities should consider best practice on commissioning services, for example the NAO guidance to ensure they deliver quality services with value for money. ‘Value for money’ means optimal use of resources to achieve intended outcomes, and must reference the quality of service delivered and the outcomes achieved for people’s wellbeing, and should not be solely based on achieving the lowest cost. Achieving value for money may mean arranging service provision collaboratively with other authorities, in order to secure viable, quality services that meet the demands identified, for example, low-volume services.

4.95 Commissioning and procurement practices must deliver services that meet the requirements of the Care Act and all related statutory guidance. Re-commissioning and replacing services represents a particular challenge and should be carried out so as to maintain quality and service delivery that supports the wellbeing of people who need care and support and carers, and guards against the risk of a discontinuity of care and support for those receiving services. For example, multiple contracts terminating around the same time may destabilise local markets if established providers lose significant business rapidly and staff do not transfer smoothly to new providers.

4.96 De-commissioning services where there is to be no replacement service should similarly be carried out so as to maintain the wellbeing of people who need care and support, and carers, and ensures that their eligible needs continue to be met.

4.97 Local authorities should consider the contract arrangements they make with providers to deliver services, including the range of block contracts, framework agreements, spot contracting or ‘any qualified provider’ approaches, to ensure that the approaches chosen do not have negative impacts on the sustainability, sufficiency, quality, diversity and value for money of the market as a whole – the pool of providers able to deliver services of appropriate quality.

4.98 A local authority’s own commissioning should be delivered through a professional and effective procurement, tendering and contract management, monitoring, evaluation and decommissioning process that must be focussed on providing appropriate high quality services to individuals to support their wellbeing and supporting the strategies for market shaping and commissioning, including all the themes set out in this guidance.

4.99 Local authorities should ensure that they understand relevant procurement legislation, and that their procurement arrangements are consistent with such legislation and best practice. Local authorities should be aware that there is significant flexibility in procurement practices to support effective engagement with provider organisations and support innovation in service delivery, potentially reducing risks and leading to cost-savings. The Office of Fair Trading produced guidance to help public purchasers understand the flexibilities so as to support service transformations through better commissioning. The Market Shaping Toolkit, produced by the Institute of Public Care includes a section summarising recent changes to procurement rules, including EU procurement rules and the implications for commissioners. Government has also produced guidance on when reserved contracts may be allowable for organisations employing a significant number of disabled people these documents may be helpful to commissioners.

4.100 Local authorities should ensure that their procurement and contract management and monitoring systems provide direct and effective links to care service managers and social workers to ensure the outcomes of service delivery matches individual’s care and support needs and that where the local authority arranges services, people are given a reasonable choice of provider. Contract management should take account of feedback from people receiving care and support.

4.101 Local authorities should ensure that where they arrange services, the assessed needs of a person with eligible care and support needs is translated into effective, appropriate commissioned services that are adequately resourced and meet the wellbeing principle of the Act. For example, short home-care visits of 15 minutes or less are not appropriate for people who need support with intimate care needs, though such visits may be appropriate for checking someone has returned home safely from visiting a day centre, or whether medication has been taken (but not the administration of medicine) or where they are requested as a matter of personal choice.

4.102 When commissioning services, local authorities should pay particular attention to ensuring that providers have clear arrangements in place to prevent abuse or neglect. This should include assuring themselves, through their contracting arrangements, that a provider is capable and competent in responding to allegations of abuse or neglect, including having robust processes in place to investigate the actions of members of staff. Local authorities should be clear what information they expect from providers (for example, where there are allegations of abuse, what action the provider is taking or has taken and what the outcome is) and where providers are expected to call upon local authorities to lead a Section 42 enquiry (where the management of the provider is implicated for instance), or to involve the CCG (for health matters) or police (for example, in the case of potential crimes). There should be clear agreement about how local partners work together on investigations and what their respective roles and responsibilities are.

4.103 When commissioning services, local authorities should undertake due diligence about the financial sustainability and effectiveness of potential providers to deliver services to agreed criteria for quality, and should assure themselves that any recent breaches of regulatory standards or relevant legislation by a potential provider have been corrected before considering them during tendering processes. For example, where a provider has previously been in breach of national minimum wage legislation, a local authority should consider every legal means of excluding them from the tendering process unless they have evidence that the provider’s policies and practice have changed to ensure permanent compliance.

4.104 Contracts should incentivise value for money, sustainability, innovation and continuous improvement in quality and actively reward improvement and added social value. Contracts and contract management should manage and eliminate poor performance and quality by providers and recognise and reward excellence.

4.105 Local authorities are under a duty to consider added social value when letting contracts through the Public Services (Social Value) Act 2012 and are required to consider how the services they procure, above relevant financial thresholds, might improve the economic, social and environmental wellbeing of the area. Local authorities should consider using this duty to promote added value in care and support both when letting contracts to deliver care and support, and for wider goods and services. This should include considering whether integrated services, voluntary and community services and ‘community capital’ could be enhanced, recognising that these community assets provide the bedrock of care and support that commissioned and bought services supplement. Local authorities should consider the range of funding mechanisms that are available to support market interventions to support community based organisations such as seed funding and grants.

4.106 All services delivered should adhere to national quality standards, with procedures in place to assure quality, safeguarding, consider complaints and commendations, and continuing value for money, referencing the CQC standards for quality and CQC quality ratings.

4.107 Local authorities may consider delegating some forms of contracting to brokers and people who use care and support to support personal choice for people who are not funded by the local authority and those taking direct payments, with appropriate systems in place to underpin the delivery of safe, effective appropriate high quality services through such routes. Where functions and activities are delegated, local authorities should ensure that appropriate elements of this statutory guidance are included in contractual conditions, for example, allowing engagement in developing Market Position Statements. Local authorities should also consider providing support to people who wish to use direct payments to help them make effective decisions through, for example, Direct Payment support organisations.

4.108 Local authority procurement and contract management activities should seek to minimise burdens on provider organisations and reduce duplications, where appropriate, using and sharing information, with for example the CQC.

4.109 Recognising that procurement is taking place against a backdrop of significant demand on commissioners to achieve improved value for money and make efficiencies, local authorities should consider emerging practice on achieving efficiencies without undermining the quality of care.

Further information/best practice

4.110 The different approaches provided in footnotes in this guidance are meant as illustrative examples rather than recommendations or endorsements.

4.111 The Department of Health funded a programme during 2013 to 2014 to support local authorities prepare for market shaping duties; further information is available on the Developing Care Markets for Quality and Choice programme website. The Department also funded a project to develop commissioning standards, Commissioning for Better Outcomes, which are designed to support local authorities, through peer challenge and self-assessment to move towards commissioning practices which underpins the themes of this statutory guidance.

4.112 The Developing Care Markets programme, Commissioning for Better Outcomes, and the market shaping toolkit develop the themes presented in this statutory guidance and will themselves point to examples of best practice and support tools that demonstrate how these themes have been introduced and delivered effectively.

5. Managing provider failure and other service interruptions

This chapter provides guidance on:

• Sections 19 and 48 to 57 of the Care Act 2014
• The Care and Support (Business Failure) Regulations 2015

This chapter covers:

• service interruptions because of business failure, this chapter explains what local authorities must do if a provider is unable to carry on because of business failure
• business failure involving a provider in the Care Quality Commission’s (CQC) market oversight regime. This section explains CQC’s role if business failure occurs and the link with the local authority’s temporary duty
• business failure involving a provider not in the CQC market oversight regime. This section explains what local authorities must do if the business failure involves a provider not in the CQC regime
• administration and other insolvency procedures. This section explains the relationship between local authorities and persons such as an Administrator appointed in insolvency proceedings
• service interruptions other than business failure. This section explains local authorities’ powers where a service is interrupted for other reasons
• the link with local authorities’ duties in respect of market shaping. This section explains how local authorities’ market shaping activities can play a part in effectively addressing service interruptions
• the need for contingency planning. This section explains how local authorities should consider having contingency plans in advance to address the service interruptions that pose the greatest risk locally

5.1 The possibility of interruptions to care and support services causes uncertainty and anxiety for people receiving services, their carers, family and friends. This guidance explains how the Care Act makes provision to ensure that, in such circumstances, the care and support needs of those receiving the service continue to be met. It describes local authorities’ powers and duties when services are at risk of interruption in general and, in particular, when the interruption is because a provider’s business has failed. It provides guidance to local authorities on the exercise of those powers and the discharge of those duties.

5.2 Interruptions can arise from a number of different causes. An example is when a provider of services faces commercial difficulties that put the continuation of their business under threat. In 2011, Southern Cross Healthcare, then the biggest provider of residential care services in the United Kingdom, ran into financial difficulties and it was possible the business would have to close down, putting services to residents at risk. While Southern Cross was a provider of services in all parts of the country, smaller local providers can also encounter commercial issues which cause uncertainty for people receiving care and support. Local authorities have an important role in situations where a provider is unable to continue to supply services because of business failure.

5.3 There are numerous other situations that can cause disruption to care and support services. Some may impact on the whole business – for example, a provider decides to close the business down – while others impact on a particular service – for example, a meningitis outbreak at a care home. Local authorities should use their powers to act in such cases, as set out below.

Definitions

5.4 ‘Business failure’ is defined in The Care and Support (Business Failure) Regulations 2015 (PDF, 45KB). These Regulations define what is meant by ‘business failure’ and explain the circumstances in which a person is to be treated as being unable to do something because of business failure. Business failure is defined by a list of different events such as the appointment of an administrator, the appointment of a receiver or an administrative receiver (the full list appears in the Regulations). Service interruption because of ‘business failure’ relates to the whole of the regulated activity and not to parts of it.

5.5 ‘Temporary duty’ or ‘duty’ means the duty on local authorities to meet needs in the case of business failure. ‘Temporary’ means the duty continues for as long as the local authority considers it necessary. The temporary duty applies regardless of whether a person is ordinarily resident in the authority’s area. The duty applies from the moment the authority becomes aware of the business failure. The actions to be taken by authorities will depend on the circumstances, and may include the provision of information. The duty is to meet needs but authorities have discretion as to how they meet those needs.

Service interruptions because of business failure

5.6 Business failure of a major provider is a rare and extreme event and does not automatically equate to closure of a service. It may have no impact on residents or the people who use the services. However, if a provider of any size is unable to continue because of business failure, the duties on local authorities are as follows.

5.7 Local authorities are under a temporary duty to meet people’s needs when a provider is unable to continue to carry on the relevant activity in question because of business failure. The duty applies when a service can no longer be provided and the reason for that is that the provider’s business has failed. If the provider’s business has failed but the service continues to be provided then the duty is not triggered. This often may happen in insolvency situations where an administrator is appointed and continues to run the service.

5.8 The duty applies where a failed provider was meeting needs in the authority’s area. It does not matter whether or not the authority has contracts with that provider, nor does it matter if all the people affected are self-funders (for example, arranging and paying for their own care). The duty is in respect of people receiving care by that provider in that authority’s area – it does not matter which local authority (if any) made the arrangements to provide services.

5.9 The needs that must be met are those that were being met by the provider immediately before the provider became unable to carry on the activity. Local authorities must ensure the needs are met but how that is done is for the local authority to decide, and there is significant flexibility in determining how to do so, as set out in section 8 of the Care Act. It is not necessary to meet those needs through exactly the same combination of services that were previously supplied. However, when deciding how needs will be met, local authorities must involve the person concerned, any carer that the person has, or anyone whom the person asks the authority to involve (see chapter 10 on care and support planning). Where the person lacks capacity to ask the authority to do that, the local authority must involve anyone who appears to the authority to be interested in the person’s welfare. Where a carer’s service is involved, local authorities must involve the carer and anyone the carer asks the authority to involve. The authority must take all reasonable steps to agree how needs should be met with the person concerned. It should seek to minimise disruption for people receiving care, in line with the wellbeing principle and, although authorities have discretion about how to meet needs, the aim should be to provide a service as similar as possible to the previous one.

5.10 An authority has the power, where it considers this necessary to discharge the temporary duty, to request that the provider, or anyone involved in the provider’s business as it thinks appropriate, to supply it with information that it needs. This may involve, for example, up-to-date records of the people who are receiving services from that provider, to help the local authority to identify those who may require its support.

5.11 The authority should act promptly to meet people’s needs. The lack of a needs or carer’s assessment or a financial assessment for a person must not be a barrier to action. Neither is it necessary to complete those assessments before or whilst taking action. Similarly, authorities must meet needs irrespective of whether those needs would meet the eligibility criteria. All people receiving services in the local authority’s area are to be treated the same. In particular, how someone pays for the costs of meeting their needs – for example, in full by the person themselves – must have no influence on whether the authority fulfils the duty. However, an authority may charge the person for the costs of meeting their needs, and it may also charge another local authority which was previously meeting those needs, if it temporarily meets the needs of a person who is not ordinarily resident in its area. The charge must cover only the actual cost incurred by the authority in meeting the needs. No charge must be made for the provision of information and advice to the person.

5.12 The Care Act imposes certain restrictions on the provision of health services by local authorities and these apply to meeting needs in provider failure cases (section 52(7)). A local authority may not meet needs in provider failure cases by, for example, providing NHS Continuing Healthcare (NHS CHC). Where the failed provider’s clientele consists of persons in receipt of NHS CHC, unless their needs appear to have changed, it would be reasonable for the local authority to conclude that it was not necessary to do anything to meet those needs. This is because the duty to provide NHS CHC falls on the NHS and local authorities cannot provide it. The duties of the NHS in such situations are covered elsewhere and as such are beyond the scope of this guidance. Authorities should refer to the Standing Rules (the National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012, as amended); and to the national framework for NHS Continuing Healthcare and NHS-funded nursing care and the NHS-Funded Nursing Care Best Practice Guidance for further guidance.

5.13 In fulfilling this function, authorities must follow the general duties to cooperate (see chapter 15). Where a person is not ordinarily resident in an authority’s area, that authority must cooperate with the authority which was arranging for the needs to be met previously (for example, before the provider became unable to carry on because of business failure). The duty of cooperation applies equally where the needs being met previously were paid for (in full or in part) by another authority through a direct payment to the person concerned.

5.14 Authorities that disagree on whether and/or how the law (for example, section 48) applies in these circumstances may apply to the Secretary of State for a determination of a dispute under the procedure that applies to disputes over ordinary residence or continuity of care (see chapters 19 and 20).

5.15 All of the duties on local authorities described above apply equally if the needs the authority must meet were, at the time the provider became unable to carry on because of business failure, being met under arrangements made by local authorities in Wales, Scotland or Northern Ireland under the legislation that applies in those countries. English local authorities may recover from their counterparts in Wales, Scotland and Northern Ireland the costs incurred in meeting the person’s needs. If applicable, English authorities can also recover costs from the person themselves (other than the costs of needs being met or funded by the authorities mentioned above).

5.16 Disputes between authorities in England, Wales, Scotland or Northern Ireland about whether or how the temporary duty applies in cross-border situations are to be resolved under the legislation governing disputes about cross-border placements in Schedule 1 and the relevant regulations (see chapter 22).

Business failure involving a provider in the CQC oversight regime

5.17 In April 2015, the financial ‘health’ of certain care and support providers became subject to monitoring by the Care Quality Commission (CQC). The Care and Support (Market Oversight Criteria) Regulations 2015 set out the entry criteria for a provider to fall within the regime. These are intended to be providers which, because of their size, geographic concentration or other factors, would be difficult for one or more local authorities to replace, and therefore where national oversight is required. CQC will determine which providers satisfy the criteria using data available to it. It will notify the providers which meet the entry criteria.

5.18 CQC must then assess the financial sustainability of the provider’s business. If it assesses there is a significant risk to the financial sustainability of the provider’s business, there are certain actions CQC may take with that provider (none of which involve local authorities).

5.19 Where CQC is satisfied that a provider in the regime is likely to become unable to continue with their activity because of business failure, it is required to tell the local authorities which it thinks will be required to carry out the temporary duty, so that they can prepare for the local consequences of the business failure. CQC will inform local authorities once it is satisfied the provider is unlikely to be able to carry on because of business failure. CQC’s trigger to contact authorities is that it believes the whole of the regulated activity in respect of which the provider is registered is likely to fail, not parts of it. It is not required to make contact with authorities if, say, a single home owned by the provider in the regime is likely to fail because it is unprofitable and the CQC is not satisfied that this will lead to the whole of the provider’s relevant regulated activity becoming unable to continue. In these circumstances, it is the provider’s responsibility to wind down and close the service in line with its contractual obligations and it is expected that providers would do so in a planned way that does not interrupt people’s care.

5.20 Where CQC considers it necessary to do so to help a local authority to carry out the temporary duty, it may request the provider to provide it with information and CQC must then give the information, and any further relevant information it holds, to the local authorities affected. If the CQC is of the view that a provider is likely to become unable to continue with its activity because of business failure, the CQC should work closely together with the affected local authorities to help them fulfil their temporary duty. In exercising its market oversight functions, CQC must have regard to the need to minimise the burdens it imposes on others.

Business failure involving a provider not in the CQC oversight regime

5.21 Regulations set out the entry criteria into the CQC regime. It will be for CQC to apply those regulations and decide which providers are included. There are many thousands of providers in England and only a relatively small number of providers fall in the regime. The providers outside the regime will in the main be those with small and medium size businesses.

5.22 The temporary duty on local authorities to meet needs in the case of business failure applies regardless of whether the provider is in the market oversight regime. Despite the CQC having a market oversight responsibility, local authorities have responsibility to ensure continuity of care in respect of business failure of all registered providers.

Administration and other insolvency procedures

5.23 Business failure (as defined) will usually involve an official being appointed for example, an Administrator to oversee the insolvency proceedings. An Administrator represents the interests of the creditors of the provider that has failed and will typically try to rescue the company as a going concern. In these circumstances, the service will usually continue to be provided, and the exercise of local authorities’ temporary duties may not be called for. It is not for local authorities to become involved in the commercial aspects of the insolvency, but they should cooperate with the Administrator if requested. Local authorities should, insofar as it does not adversely affect people’s safety and wellbeing, support efforts to maintain service provision by, for example, not prematurely withdrawing people from the service that is affected, or ceasing to commission that service.

Service interruptions other than business failure

5.25 Sections 18 and 20 of the Care Act set out when a local authority must meet a person’s eligible needs. They place duties on the local authority. If the circumstances described in the sections apply and the needs are eligible, the local authority must meet the needs in question. These duties apply whether or not business failure is at issue.

5.26 Section 19 of the Care Act covers the circumstances where care and support needs may be met for example, circumstances where no duties arise under section 18 but the local authority may nevertheless meet an adult’s needs. In particular, section 19(3) permits a local authority to meet needs which appear to it to be urgent. In this context, ‘urgent’ takes its everyday meaning, subject to interpretation by the courts, and may be related to, for example, time, severity. This is likely to be the case in many situations where services are interrupted but business failure is not the cause. The power in section 19(3) can be exercised in order to meet urgent needs without having first conducted a needs assessment, financial assessment or eligibility criteria determination. The local authority may meet urgent needs regardless of whether the adult is ordinary resident in its area. This means the local authority can act quickly if circumstances warrant. The power to meet urgent needs is not limited by reference to services delivered by particular providers and is thus available where urgent needs arise as a result of service failure of an unregistered provider (for example, a provider of an unregulated social care activity). The power may also be used in the context of quality failings of providers if that is causing people to have urgent needs.

5.27 This section gives local authorities a power to act to meet needs, but it does not require that authorities must act. Whether or not to act is a decision for the authority itself but authorities should consider the examples which follow.

5.28 In relation to service interruption, circumstances that might lead to the exercise of the power include where the continued provision of care and support to those receiving services is in imminent jeopardy and there is no likelihood of returning to a ‘business as usual’ situation in the immediate future, leading to urgent needs. Not all situations where a service has been interrupted or closed will merit local authority involvement because not all cases will result in adults having urgent needs. For example, if a care home closes and residents have agreed to the provider’s plans to move the residents to a nearby care home that the provider also owns, local authorities will not necessarily have to become actively involved as urgent needs might not arise. On the other hand, the local authority might wish to be satisfied that the alternative home can adequately meet the urgent needs. Whether to act under this power is a judgement for the local authority to make in the first instance.

5.29 If a provider has not failed, it is primarily the provider’s responsibility to meet the needs of individuals receiving care in accordance with its contractual liabilities. The local authority may wish to be involved to help with this. The power provides an ultimate backstop for use where the provider cannot or will not meet its responsibilities, and where the authority judges that the needs of individuals are urgent (and where the local authority is not already under a duty to meet the adult’s needs, for example under section 18).

5.30 A service closure may be temporary (for example, unforeseen absence of qualified staff) or permanent (for example, the home is to be sold on for use as a hotel). Similarly, an emergency closure or planned closure may be involved. What matters in deciding whether to meet needs is whether the needs of the people affected appear to be urgent. For example, the sale of a provider’s business may be a positive development for residents, service users and commissioners alike and may not lead to urgent needs. These powers are not intended to inhibit the effective operation of a market in improving choice, quality and investment.

5.31 Where the local authority does get involved in ensuring needs continue to be met, that involvement might be short-lived (for example, the giving of advice) or enduring over some months (for example, overseeing the movement of residents following the closure of several homes owned by the same provider). Acts of God (for example, flooding) or complications with suppliers (for example, a nursing agency refuses to continue to provide qualified staff) should not in themselves automatically be considered to trigger the use of the power. In all cases, the test is whether the local authority considers there is an urgent need to be met.

5.32 When considering action in relation to service interruption or closure, there is a balance to be struck. On the one hand, if local authorities know there is a serious risk to the continued provision of a service, they may consider not using that service temporarily or reassigning people using that service to an alternative service. On the other hand, it may be possible and justifiable for the local authority to act in a way that maximises the provider’s chances of continuing to provide the service and avoiding a business failure. Local authorities should weigh the consequences of their actions before deciding how to respond, in particular, how their actions might impact on the likelihood of the service continuing. Certain actions may increase the risk of precipitating the business failure.

5.33 In summary, each service interruption should be considered on its facts and assessed by the local authority through a process of risk assessment. It is for the local authority to decide if it will act to meet a person’s needs for care and support which appear to it to be urgent. In exercising this judgement the local authority must act lawfully, including taking decisions that are reasonable.

The link with local authorities’ duties in respect of market shaping

5.34 Section 5 and the associated guidance sets out authorities’ duties to promote the efficient and effective operation of the local market in care and support services (see chapter 4). Central to this function is the need to ensure that the authority has, and makes available, information about the providers of care and support services in its area and the types of services they provide. This gathering of market intelligence is equally relevant to authorities’ responses to business failure and other service interruptions. Where alternative services are to be put in place, an effective response requires a thorough knowledge of the market, which providers provide which services, the quality of each provider’s services and where there is spare capacity in service provision. In anticipating potential service interruptions, there is also a need to know the vulnerabilities in the operation of the market. For example, is there only one local provider of a particular service and no alternatives exist locally, or does one provider cater for a substantial part of the local market and alternative capacity could not be found easily? Service interruptions involving such providers are likely to be more difficult to address. Local authorities should have knowledge of market vulnerabilities, market capacity and capabilities such as this in order to respond effectively to service interruptions.

5.35 Local authorities should understand how providers in their area are coping with the current trading conditions through discussions with the providers themselves. Authorities can achieve this without the collection of detailed financial metrics, accounts and business plans that CQC might utilise in respect of the major corporate providers in the regime. The business failure of providers outside the CQC regime will be on a smaller scale, usually with lesser impact, and local authorities should take a proportionate approach to anticipating or getting early warning of business failure. Local authorities may find the Cordis Bright guidance and toolkit: Assessing care market and provider sustainability helpful in developing a proportionate approach. Given CQC is responsible for monitoring the financial sustainability of providers falling within the market oversight scheme, it is not necessary for authorities also to ask for detailed financial information from these providers.

The need for contingency planning

5.36 Most service interruptions are on a small scale and are easily managed but service interruptions on a large scale pose far greater problems. If a provider which operates nationwide fails, few local authorities are likely to be able to respond effectively on their own. Local authorities should consider how they would respond to different service interruptions and, where the involvement of neighbouring authorities would be essential in order to maintain services, ensure effective liaison and information sharing arrangements are set up in advance. Close cooperation between authorities may be particularly required where an authority has a substantial number of people placed within its area by other authorities.

5.37 As part of contingency planning, authorities should discuss with local providers which services they would be willing and able to provide if the need arose because another local provider had failed. This should help to facilitate a prompt response that would help to maintain continuity of care for the people affected. Through its market shaping activities, authorities should encourage trust between the parties so that effective relationships exist where urgent needs are to be met.

5.38 Service interruptions are often the cause of much anxiety and media attention. Local authorities should have the capacity to react quickly to any media reporting of service interruptions, whether large scale or small, if uncertainty and anxiety are to be minimised.

5.39 Local authorities should consider how to undertake contingency planning most effectively at a local level, to ensure preparedness for possible service interruptions in the future. Service interruptions are often unforeseen and require rapid response. Local authorities should review which service interruptions pose the greatest risk in their locality and consider developing contingency plans in advance, in conjunction with local partners. This may include regional activity with other local authorities in the same area, where risks are better shared between a number of neighbouring authorities.

5.40 Local authorities already plan and manage challenging situations as a matter of course, for example, school closures from public health outbreaks or the impact of extreme weather. The aim should be that contingency planning for social care sits alongside authorities’ other emergency planning activities.

5.41 Local authorities may find it useful to consider the Local Government Information Unit guide, Care and continuity: contingency planning for provider failure.

First contact and identifying needs

This section includes the following chapters:

6. Assessment and eligibility

This chapter provides guidance on:

• Sections 9 to 13 of the Care Act 2014
• the Care and Support (Assessment) Regulations 2014
• the Care and Support (Eligibility Criteria) Regulations 2015

This chapter covers:

• the purpose of needs and carers’ assessments; refusal of assessment; first contact and relevant safeguarding, advocacy and capacity duties; supporting the person’s involvement in the assessment; taking a preventative approach and looking at a person’s strengths
• the importance of appropriate and proportionate assessment, including supporting the person through the process, enabling supported self-assessment, combining assessments and referring to NHS Continuing Healthcare where appropriate
• taking into account the wider picture by considering fluctuating needs and the impact on the whole family
• the importance of having assessors appropriately trained and with the experience and knowledge necessary to carry out the assessment, including specialist assessments for those who are deafblind
• carrying out integrated assessment where a person has other needs, for example where the person also has health as well as care and support needs; keeping records and delegating assessments
• the eligibility framework to ensure that there is clarity and consistency around local authority determinations on eligibility

Assessment

6.1 The assessment and eligibility process is one of the most important elements of the care and support system. The assessment is one of the key interactions between a local authority and an individual, whether an adult needing care or a carer. The process must be person-centred throughout, involving the person and supporting them to have choice and control.

6.2 The assessment process starts from when local authorities begin to collect information about the person, and will be an integral part of the person’s journey through the care and support system as their needs change. It should not just be seen as a gateway to care and support, but should be a critical intervention in its own right, which can help people to understand their situation and the needs they have, to reduce or delay the onset of greater needs, and to access support when they require it. It can also help people to understand their strengths and capabilities, and the support available to them in the community and through other networks and services.

6.3 An ‘assessment’ must always be appropriate and proportionate. It may come in different formats and can be carried out in various ways, including but not limited to:

• a face-to-face assessment between the person and an assessor, whose professional role and qualifications may vary depending on the circumstances, but who must always be appropriately trained and have the right skills and knowledge
• a supported self-assessment, which should use similar assessment materials as used in other forms of needs or carers’ assessments, but where the person completes the assessment themselves and the local authority assures itself that it is an accurate reflection of the person’s needs (for example, by consulting with other relevant professionals and people who know the person with their consent)
• an online or phone assessment, which can be a proportionate way of carrying out assessments (for example where the person’s needs are less complex or where the person is already known to the local authority and it is carrying out an assessment following a change in their needs or circumstances)
• a joint assessment, where relevant agencies work together to avoid the person undergoing multiple assessments (including assessments in a prison, where local authorities may need to put particular emphasis on cross-agency cooperation and sharing of expertise)
• a combined assessment, where an adult’s assessment is combined with a carer’s assessment and/or an assessment relating to a child so that interrelated needs are properly captured and the process is as efficient as possible

6.4 People may approach a local authority for an assessment, or be referred by a third party, for a number of reasons. The ‘assessment’ which they receive must follow the core statutory obligations, but the process is flexible and can be adapted to best fit with the person’s needs, wishes and goals. The nature of the assessment will not always be the same for all people, and depending on the circumstances, it could range from an initial contact or triage process which helps a person with lower needs to access support in their local community, to a more intensive, ongoing process which requires the input of a number of professionals over a longer period of time.

6.5 The aim of the assessment is to identify what needs the person may have and what outcomes they are looking to achieve to maintain or improve their wellbeing. The outcome of the assessment is to provide a full picture of the individual’s needs so that a local authority can provide an appropriate response at the right time to meet the level of the person’s needs. This might range from offering guidance and information to arranging for services to meet those needs. The assessment may be the only contact the local authority has with the individual at that point in time, so it is critical that the most is made of this opportunity.

6.6 The assessment and eligibility process provides a framework to identify any level of need for care and support so that local authorities can consider how to provide a proportionate response at the right time, based on the individual’s needs. Prevention and early intervention are placed at the heart of the care and support system, and even if a person has needs that are not eligible at that time, the local authority must consider providing information and advice or other preventative services. Local authorities must also consider the person’s own strengths or if any other support might be available in the community to meet those needs. The assessment and eligibility framework provides for ongoing engagement with the person so where they have eligible needs they are involved in the arrangements put in place to deliver the outcomes they want to achieve.

6.7 To provide a comprehensive assessment, the assessor must be appropriately trained. Registered social workers and occupational therapists can provide important support and may be involved in complex assessments which indicate a wide range of needs, risks and strengths that may require a coordinated response from a variety of statutory and community services. Or they may be involved at the point of first contact to advise on whether preventative services would be more appropriate at that time.

6.8 Some of the duties and powers detailed in this chapter apply to children and young carers in transition as well as to adults (for more information on transition, (see chapter 16 on Transition to adult care and support).

The purpose of an assessment

6.9 The purpose of an assessment is to identify the person’s needs and how these impact on their wellbeing, and the outcomes that the person wishes to achieve in their day-to-day life. The assessment will support the determination of whether needs are eligible for care and support from the local authority, and understanding how the provision of care and support may assist the adult in achieving their desired outcomes. An assessment must be person-centred, involving the individual and any carer that the adult has, or any other person they might want involved. An adult with care needs could for example ask for their GP or a district nurse to be contacted to provide information relevant to their needs.

6.10 An assessment must seek to establish the total extent of needs before the local authority considers the person’s eligibility for care and support and what types of care and support can help to meet those needs. This must include looking at the impact of the adult’s needs on their wellbeing and whether meeting these needs will help the adult achieve their desired outcomes. The assessment process also provides the opportunity for local authorities to take a holistic view of the person’s needs in the context of their wider support network. Local authorities must consider how the adult, their support network and the wider community can contribute towards meeting the outcomes the person wants to achieve.

6.11 An individual may be unable to request an assessment or may struggle to express their needs. The local authority must in these situations carry out supported decision making, helping the person to be as involved as possible in the assessment, and must carry out a capacity assessment. The requirements of the Mental Capacity Act and access to an Independent Mental Capacity Advocate apply for all those who may lack capacity.

6.12 Eligibility determinations must be made on the basis of an assessment, and cannot be made without having first carried out an assessment. Once an eligibility determination has been made, and the local authority has determined whether it will meet the person’s needs (whether eligible or not), it must then carry out a financial assessment if it wishes to charge the adult and confirm that the adult is ordinarily resident in the authority. The eligibility determination cannot take place until an assessment has been completed, except in cases where the local authority is meeting urgent needs. The financial assessment may in practice run parallel to the needs assessment, but it must never influence an assessment of needs. Local authorities must inform individuals that a financial assessment will determine whether or not they pay towards their care and support, but this must have no bearing on the assessment process itself.

Needs assessment

6.13 Local authorities must undertake an assessment for any adult with an appearance of need for care and support, regardless of whether or not the local authority thinks the individual has eligible needs or of their financial situation.

6.14 Wherever an individual expresses a need, or any challenges and difficulties they face because of their condition(s), the local authority should ensure that it has established the impact of that on the individual’s day-to-day life. The local authority must also consider whether the individual’s needs impact upon their wellbeing beyond the ways identified by the individual. For example where an adult expresses a need regarding their physical condition and mobility, the local authority must establish the impact of this on the adult’s desired outcomes; and must also consider whether their need(s) have further consequences on their wider wellbeing such as on their personal health or the suitability of their living accommodation.

6.15 During the assessment, local authorities must consider all of the adult’s care and support needs, regardless of any support being provided by a carer. Where the adult has a carer, information on the care that they are providing can be captured during assessment, but it must not influence the eligibility determination. After the eligibility determination has been reached, if the needs are eligible or the local authority otherwise intends to meet them, the care which a carer is providing can be taken into account during the care and support planning stage. The local authority is not required to meet any needs which are being met by a carer who is willing and able to do so, but it should record where that is the case. This ensures that the entirety of the adult’s needs are identified and the local authority can respond appropriately if the carer feels unable or unwilling to carry out some or all of the caring they were previously providing.

Carer’s assessment

6.16 Where an individual provides or intends to provide care for another adult and it appears that the carer may have any level of needs for support, local authorities must carry out a carer’s assessment. Where an adult provides care under contract (for example, for employment) or as part of voluntary work, they should not normally be regarded as a carer, and so the local authority would not be required to carry out the assessment.

6.17 There may be circumstances where the adult providing care, either under contract or through voluntary work, is also providing care for the same adult outside of those arrangements. In such a circumstance, the local authority must consider whether to carry out a carer’s assessment for that part of the care they are not providing on a contractual or voluntary basis. There may also be cases where the person providing care does so as voluntary work or under contract, but the nature of their relationship with the person cared for is such that they ought to be considered as a carer within the scope of the Act. The local authority has the power to carry out an assessment in such cases, if it judges that there is reason to do so.

6.18 Carers’ assessments must seek to establish not only the carer’s needs for support, but also the sustainability of the caring role itself, which includes both the practical and emotional support the carer provides to the adult. Therefore, where the local authority is carrying out a carer’s assessment, it must include in its assessment a consideration of the carer’s potential future needs for support. Factored into this must be a consideration of whether the carer is, and will continue to be, able and willing to care for the adult needing care. Some carers may need support in recognising issues around sustainability, and in recognising their own needs. This will allow local authorities to make a realistic evaluation of the carer’s present and future needs for support and whether the caring relationship is sustainable. Where appropriate these views should be sought in a separate conversation independent from the adult’s needs assessment.

6.19 The carer’s assessment must also consider the outcomes that the carer wants to achieve in their daily life, their activities beyond their caring responsibilities, and the impact of caring upon those activities. This includes considering the impact of caring responsibilities on a carer’s desire and ability to work and to partake in education, training or recreational activities, such as having time to themselves. This impact should be considered in both a short-term immediate sense but also the impact of caring responsibilities over a longer term, cumulative sense.

Refusal of assessment

6.20 An adult with possible care and support needs or a carer may choose to refuse to have an assessment. The person may choose not to have an assessment because they do not feel that they need care or they may not want local authority support. In such circumstances local authorities are not required to carry out an assessment. However, where the local authority identifies that an adult lacks mental capacity and that carrying out a needs assessment would be in the adult’s best interests, the local authority is required to do so. The same applies where the local authorities identifies that an adult is experiencing, or is at risk of experiencing, abuse or neglect. Where the adult who is or is at risk of abuse or neglect has capacity and is still refusing an assessment, local authorities must undertake an assessment so far as possible and document this. They should continue to keep in contact with the adult and carry out an assessment if the adult changes their mind, and asks them to do so.

6.21 In instances where an individual has refused a needs or carer’s assessment but at a later time requests that an assessment is carried out, the local authority must do so. Additionally, where an individual previously refused an assessment and the local authority establishes that the adult or carer’s needs or circumstances have changed, the local authority must consider whether it is required to offer an assessment, unless the person continues to refuse.

First contact with the authority

6.22 The assessment process starts from when local authorities start to collect information about the person. From their very first contact with the local authority, the person must be given as much information as possible about the assessment process, as early as possible, to ensure a personalised approach to the assessment. This should include detail of what can be expected during the assessment process (such as the format and timescale of assessment, complaints processes and possible access to independent advocacy) and allow them to be as involved in the process as possible. Local authorities must ensure that this information is in an accessible format for those to whom it is provided. For example, Braille may be an appropriate format for many with partial-sightedness or who are blind. Some formats are less accessible for certain groups, such as online platforms for those with particular sensory impairments.

6.23 From this early stage local authorities should consider whether the individual would have substantial difficulty in being involved in the assessment process and if so consider the need for independent advocacy (see chapter 7). Local authorities should also consider whether the person may have difficulty communicating (for example those with Autistic Spectrum Disorder or Profound and Multiple Learning Disabilities) and whether a specialist or interpreter may be needed to support communication. For information on reasonable adjustments, see the Equality Act 2010

6.24 Getting the initial response right can save time and costs on assessment later. Some local authorities have found that putting in place a single access point for all new requests and people currently receiving care can speed up and simplify the process for people approaching the authority; and can also free up time for professional staff to focus on more complex cases.

6.25 Local authorities should not, however, remove people from the process too early. Early or targeted interventions such as universal services, a period of reablement and providing equipment or minor household adaptions can delay an adult’s needs from progressing. The first contact with the authority, which triggers the requirement to assess, may lead to a pause in the assessment process to allow such interventions to take place and for any benefit to the adult to be determined. Local authorities must ensure that their staff are sufficiently trained and equipped to make the appropriate judgements needed to steer individuals seeking support towards information and advice, preventative services or a more detailed care and support assessment, or all of these. They must also be able to identify a person who may lack mental capacity and to act accordingly.

6.26 The Care Act provides local authorities with the powers to meet urgent needs where they have not completed an assessment. Authorities may meet urgent need for care and support regardless of the person’s ordinary residence. See the Care Act 2014, Section 19. Where an individual with urgent needs approaches or is referred to the local authority, the local authority should provide an immediate response and meet the individual’s care and support needs. For example, where an individual’s condition deteriorates rapidly or they have an accident, they will need a swift response to ensure their needs are met. In some cases, the appropriate response may be that the local authority will meet the adult’s needs. In other cases, an immediate referral may be the best way to meet a person’s urgent needs, for example by completing the NHS Continuing Healthcare Fast Track Pathway Tool. Following this initial response, the individual should be informed that a more detailed needs assessment, and any subsequent processes, will follow. Once the local authority has ensured these urgent needs are met, it can then consider details such as the person’s ordinary residence and finances.

6.27 Staff who are involved in this first contact must have the appropriate training and should have the benefit of access to professional support from social workers, occupational therapists and other relevant experts as appropriate, to support the identification of any underlying conditions or to ensure that complex needs are identified early and that people are signposted appropriately.

6.28 Local authorities must ensure that any adult with an appearance of care and support needs, and any carer with an appearance of need for support, receives a proportionate assessment which identifies their level of needs. Where appropriate, an assessment may be carried out over the phone or online. In adopting such approaches, local authorities should consider whether the proposed means of carrying out the assessment poses any challenges or risks for certain groups, particularly when assuring itself that it has fulfilled its duties around safeguarding, independent advocacy, and assessing mental capacity. Where there is concern about a person’s capacity to make a decision, for example as a result of a mental impairment such as those with dementia, acquired brain injury, learning disabilities or mental health needs, a face-to-face assessment should be arranged. Local authorities have a duty of care to carry out an assessment in a way that enables them to recognise the needs of those who may not be able to put these into words. Local authorities must ensure that assessors have the skills, knowledge and competence to carry out the assessment in question, and this applies to all assessments regardless of the format they take.

6.29 An assessment should be carried out over an appropriate and reasonable timescale taking into account the urgency of needs and a consideration of any fluctuation in those needs. Local authorities should inform the individual of an indicative timescale over which their assessment will be conducted and keep the person informed throughout the assessment process.

Supporting the person’s involvement in the assessment

6.30 Putting the person at the heart of the assessment process is crucial to understanding the person’s needs, outcomes and wellbeing, and delivering better care and support. The local authority must involve the person being assessed in the process as they are best placed to judge their own wellbeing. In the case of an adult with care and support needs, the local authority must also involve any carer the person has (which may be more than one carer), and in all cases, the authority must also involve any other person requested. The local authority should have processes in place, and suitably trained staff, to ensure the involvement of these parties, so that their perspective and experience supports a better understanding of the needs, outcomes and wellbeing.

6.31 Where local authorities identify that an adult is unable to engage effectively in the assessment process independently, it should seek to involve somebody who can assist the adult in engaging with the process and helping them to articulate their preferred outcomes and needs as early as possible. This will include some people with mental impairments who will nevertheless have capacity to engage in the assessment alongside the local authority. They may require assistance whereby the local authority provides an assessment, tailored to their circumstances, their needs and their ability to engage. They should be supported in understanding the assessment process and assisted to make decisions wherever possible.

6.32 Where there is concern about a person’s capacity to make a specific decision, for example as a result of a mental impairment such as dementia, acquired brain injury or learning disabilities, then an assessment of capacity should be carried out under the Mental Capacity Act (MCA). Those who may lack capacity will need extra support to identify and communicate their needs and make subsequent decisions, and may need an Independent Mental Capacity Advocate. The more serious the needs, the more support people may need to identify their impact and the consequences. Professional qualified staff, such as social workers, can advise and support assessors when they are carrying out an assessment with a person who may lack capacity.

Independent advocates

6.33 At the point of first contact, request or referral (including self-referral), local authorities must seek to ascertain whether an individual is able to be involved in their assessment and local authorities must therefore consider whether the individual has substantial difficulty in doing so. Local authorities must consider whether the adult would experience substantial difficulty in any of these 4 areas: understanding the information provided; retaining the information; using or weighing up the information as part of the process of being involved; and communicating the person’s views, wishes or feelings. Where a person has substantial difficulty in any of these 4 areas, then they need assistance (see chapter 7, on independent advocacy).

6.34 If a person does have substantial difficulty, the local authority must find someone appropriate and independent to support and represent the person, for the purpose of facilitating their involvement. This should be done as early as possible in the assessment process so that the individual’s involvement can be supported throughout all stages of the process. Individuals may require help to understand information provided, assistance in weighing up the information, and support in communicating their wishes and preferences. Where there is a family member or friend who is willing and able to facilitate the person’s involvement effectively, and who is acceptable to the individual and judged appropriate by the local authority, they may be asked to support the individual in the assessment process. Where there is no one thought to be appropriate for this role – either because there is no family member or friend willing and available, or if the individual does not want them to be a part of the assessment – the local authority must appoint an independent advocate.

Appropriate and proportionate assessments

6.35 The assessment must be person-centred throughout. Local authorities must find out the extent to which the person being assessed wishes to be involved in the assessment and should meet those wishes as far as is practicable do so, as the person is best placed to understand the impact of their condition(s) on their outcomes and wellbeing.

6.36 An assessment should be a collaborative process and it is therefore essential that the process is transparent and understandable so that the individual is able to:

• develop an understanding of the assessment process
• develop an understanding of the implications of the assessment process on their condition(s) and situation
• understand their own needs, the outcomes they want to achieve and the impact of their needs on their own wellbeing to allow them to engage effectively with the assessment process
• start to identify the options that are available to them to meet those outcomes and to support their independence and wellbeing
• understand the basis on which decisions are reached

6.37 To support the person’s involvement, the local authority should establish the individual’s communication needs and seek to adapt the assessment process accordingly. In doing so local authorities must provide information about the assessment process in an accessible format.

6.38 To help the adult with needs for care and support, or the carer, prepare for the assessment the local authority should provide in advance, and in an accessible format, the list of questions to be covered in the assessment. This will help the individual or carer prepare for their assessment and think through what their needs are and the outcomes they want to achieve.

6.39 Some people being assessed may have severe communication needs, such as people with Profound and Multiple Learning Disabilities, Autistic Spectrum Disorder, or those who are deaf or blind. Such individuals may require the support of a specialist interpreter to help them to communicate and engage in the assessment.

6.40 Local authorities should also consider the impact of the assessment process itself on the individual’s condition(s). People may feel uncertain and worried about what an assessment involves and may find the process itself to be strenuous. Local authorities should therefore give consideration to the preferences of the individual with regards to the timing, location and medium of the assessment.

6.41 The assessment should be designed to reflect the wishes of the person being assessed, taking into account their presenting need and their circumstances. An assessment process which benefits an individual in one instance may not necessarily be as effective for another. Local authorities should recognise this and in order to maintain a person-centred approach, local authorities must ensure that assessments are flexible to each individual case.

6.42 In carrying out a proportionate assessment local authorities must have regard to:

a) The person’s wishes and preferences and desired outcomes. For example, an individual who pays for their own care may wish to receive local authority support with accessing a particular service, but may not want the same interaction with the authority as someone who wants greater support.

b) The severity and overall extent of the person’s needs. For example, an individual with more complex needs will require a more detailed assessment, potentially involving a number of professionals. A person with lower needs may require a less intensive response.

c) The potential fluctuation of a person’s needs, both adults and carers. For example, where the local authority is aware that an adult’s needs fluctuate over time, the assessment carried out at a particular moment may take into account the adult’s history to get a complete picture of the person’s needs.

6.43 Each local authority may decide to use an assessment tool to help collect information about the adult or carer and details of their wishes and feeling and their desired outcomes and needs. Where a local authority has decided that a person does not need a more detailed assessment, it should consider which elements of the assessment tool it should use and which are not necessary. When carrying out a proportionate assessment the assessor should continue to look for the appearance of further needs which may be the result of an underlying condition. Where the assessor believes that the person’s presenting needs may be as a result of or a part of wider needs then the local authority should undertake a more detailed assessment and refer the person to other services such as housing or the NHS if necessary. For example, the Brain Injury Rehabilitation Trust has produced the Brain Injury Needs Indicator, which is a tool that can be used as part of the assessment to help identify deficits of people with a suspected or diagnosed acquired brain injury.

Supported self-assessment

6.44 A supported self-assessment is an assessment carried out jointly by the adult with care and support needs or carer and the local authority. It places the individual in control of the assessment process to a point where they themselves complete their assessment form. Whilst it is the person filling in the assessment form, the duty to assess the person’s needs, and in doing so ensure that they are accurate and complete, remains with the local authority. Local authorities can offer individuals a supported self-assessment, and must do so if the adult or carer is able, willing and has capacity to undertake it. If the person does not wish to self-assess, then the local authority must undertake an assessment following one of the other processes outlined above.

6.45 In order to support the person in carrying out a supported self-assessment, the local authority must give them any relevant information it has either about the person themselves or, for a carer’s self-assessment, about the individual they care for. This is so that the person undertaking the assessment has a full picture of their care and support history and is equipped with the same information an assessor would have when undertaking an assessment. Before sharing any information, the local authority must ensure that the person consents to that information being shared. If the person lacks capacity, information must only be shared where the local authority is satisfied that doing so is in the person’s best interests. In the case of a young carer, the local authority must also consider whether it is appropriate to share the information about the person the young carer cares for (see chapter 16).

6.46 Once the person has completed the assessment, the local authority must ensure that it is an accurate and complete reflection of the person’s needs, outcomes, and the impact of needs on their wellbeing. The process of a supported self-assessment begins with first contact and is only complete when this assurance has been secured. Until the process of assurance is complete and the local authority has ensured that it is accurate, it will not have discharged its duties under section 9 of the Care Act. Where the person carrying out a supported self-assessment jointly with the local authority requires a specialist, for example people who are deafblind, then the professional leading this assurance process must be seen as the ‘assessor’ and so must have specific training and expertise relating to the individual’s needs. When assuring itself that a self-assessment is comprehensive a local authority should not look to repeat the full assessment process again.

6.47 In assuring self-assessments local authorities may consider it useful to seek the views of those who are in regular contact with the person self-assessing, such as their carer(s) or other appropriate people from their support network, and any professional involved in providing care such as a housing support officer, a GP, a treating clinician, a district nurse, a rehabilitation officer or relevant prison staff. In doing this, the local authority should first seek the person’s consent. This may be helpful in allowing local authorities to build an understanding of the individual’s desires, outcomes, needs, and the impact on their wellbeing.

6.48 The person should be asked to complete a similar assessment questionnaire that the authority uses in their needs or carers’ assessments, which must assess the person’s needs, their outcomes, and the impact of their needs on their wellbeing. The assessment questionnaire can be the same as the one used by local authority assessors or adapted to cover the same questions but made easier for the person to use and understand. Local authorities must also ensure they fulfil other relevant duties under the Act when supporting and assuring a person’s self-assessment, such as those around independent advocacy. If at any point the local authority suspects that a person is experiencing, or is at risk of, abuse and neglect, it must begin a safeguarding enquiry (see chapter 14).

6.49 Before offering a supported self-assessment local authorities must ensure that the individual has capacity to fully assess and reflect their own needs. Local authorities must establish the individual’s mental capacity in accordance with the Mental Capacity Act.

6.50 If a local authority considers a person may lack capacity to understand and carry out a self-assessment, they must carry out a capacity assessment. If this shows that the person lacks the capacity to carry out a self-assessment, then the self-assessment should not be offered.

6.51 Where local authorities have established that the adult has capacity to undertake a self-assessment but experiences substantial difficulty in understanding, retaining and using the relevant information in relation to their self-assessment, they may wish to involve their carer or any other member of their family or support network in their self-assessment. Where the adult does not have the support required from a carer or family member who is willing and able to facilitate the person’s involvement effectively and who is acceptable to the individual and judged appropriate by the local authority, the local authority must provide an independent advocate to assist them in their self-assessment. When a person who would otherwise receive a specialist assessment (for example, someone who is deafblind) chooses to undertake a self-assessment, the local authority must involve a person who has specific training and expertise when assuring that the person’s assessment taken as a whole reflects the overall needs of the individual concerned.

6.52 Local authorities should ensure that self-assessments are completed in suitable time periods. If there is a delay in the person returning the self-assessment form the authority should assure itself that this is not because the person’s condition(s) have deteriorated and is unable to complete the self-assessment.

6.53 The local authority, once it has assured itself that the self-assessment has accurately captured the person’s needs, must make an eligibility determination. Where appropriate this may include taking into account the person’s own view. Although the local authority and the individual are working jointly to ascertain needs and eligibility, the final decision regarding eligibility will rest with the local authority. In all cases, the authority must inform the person of their eligibility judgement and why the local authority has reached the eligibility determination that it has. It must also discuss what needs are eligible and discuss how these might be met. Where the authority determines that the person has needs that are not eligible it must provide advice and information on what services are available in the community that can support the person in meeting those needs.

Safeguarding

6.54 Where a person is at risk of abuse or neglect, it is important that local authorities act swiftly and put in place an effective response. When carrying out an assessment local authorities must consider the impact of the adult’s needs on their wellbeing. If it appears to local authorities that the person is experiencing, or at risk of, abuse or neglect, they must carry out a safeguarding enquiry and decide with the adult in question what action, if any, is necessary and by whom (see chapter 14).

6.55 The decision to carry out a safeguarding enquiry does not depend on the person’s eligibility, but should be taken wherever there is reasonable cause to think that the person is experiencing, or is at risk of, abuse or neglect. Where this is the case, a local authority must carry out (or request others to carry out) whatever enquiries it thinks are necessary in order to decide whether any further action is necessary.

6.56 Where the actions required to protect the adult can be met by local authorities, they should take appropriate action. In some cases, safeguarding enquiries may result in the provision of care and support (under either section 18 or 19 of the Care Act), or the provision of preventative services (under section 2) or information and advice (under section 4). In the majority of cases the response will involve other agencies, for example, a safeguarding enquiry may result in referrals to the police, a change of accommodation, or action by CQC.

6.57 Where the adult has care and support needs, local authorities must continue to carry out a needs assessment and determine whether they have eligible needs, and if so, how these will be met. The assessment for care and support should run parallel to the safeguarding enquiry and the enquiry should not disrupt the assessment process or the local authority meeting eligible needs.

Fluctuating needs

6.58 As the condition(s) of the individual at the time of the assessment may not be entirely indicative of their needs more generally, local authorities must consider whether the individual’s current level of need is likely to fluctuate and what their on-going needs for care and support are likely to be. This is the case both for short-term fluctuations, which may be over the course of the day, and longer term changes in the level of the person’s needs. In establishing the on-going level of need local authorities must consider the person’s care and support history over a suitable period of time, both the frequency and degree of fluctuation. The local authority may also take into account at this point what fluctuations in need can be reasonably expected based on experience of others with a similar condition. It is important to recognise the benefit of adopting this comprehensive approach to assessment as the consideration of an individual’s wider wellbeing may allow local authorities to provide types of care and support, or information and advice which delay or prevent the development of further needs in the future.

6.59 The assessment should also include a consideration of the individual’s wider care and support needs. This may include types of care and support the individual has received in the past and their general medical history, which may be indicative of their current care and support needs.

Focusing on preventing needs

6.60 The assessment and eligibility framework should be a key element of any prevention strategies authorities put in place. It is during the assessment where local authorities can identify needs that could be reduced, or where escalation could be delayed, and help people improve their wellbeing by providing specific preventive services, or information and advice on other universal services available locally. Early interventions can prevent or delay a person’s needs from progressing.

6.61 In parallel with assessing a person’s needs, local authorities must consider the benefits of approaches which delay or prevent the development of needs in individuals. This applies to both people with current needs that may be reduced or met through available universal services in the community, and those without needs who may otherwise require care and support in the future. This could include directing people to services such as community support groups which ensure that people feel supported, including an ability to participate in their local community. It may also include helping the person to access services which the local authority provides as part of its universal offer on prevention. Local authorities can also support the person in understanding other types of support available to them, such as within their own support networks, for example to seek to promote access to appropriate employment, education or training, which can be an effective way of maintaining independence. Such interventions at an early stage will help to sustain the independence and wellbeing of people (see chapter 2 on prevention and chapter 3 on information and advice).

6.62 Where the local authority judges that the person may benefit from such types of support, it should take steps to support the person to access those services. The local authority may ‘pause’ the assessment process to allow time for the benefits of such activities to be realised, so that the final assessment of need (and determination of eligibility) is based on the remaining needs which have not been met through such interventions. For example, if the local authority believes that a person may benefit from a short-term reablement service which is available locally, it may put that in place and complete the assessment following the provision of that service.

Considering the person’s strengths and capabilities

6.63 At the same time as carrying out the assessment, the local authority must consider what else other than the provision of care and support might assist the person in meeting the outcomes they want to achieve. In considering what else might help, authorities should consider the person’s own strengths and capabilities, and what support might be available from their wider support network or within the community to help. Strengths-based approaches might include co-production of services with people who are receiving care and support to foster mutual support networks. Encouraging people to use their gifts and strengths in a community setting could involve developing residents’ groups and appropriate training to support people in developing their skills.

6.64 Local authorities might also consider the ways a person’s cultural and spiritual networks can support them in meeting needs and building strengths, and explore this with the person. Any suggestion that support could be available from family and friends should be considered in light of their appropriateness, willingness and ability to provide any additional support and the impact on them of doing so. It must also be based on the agreement of the adult or carer in question.

Considering the person’s strengths: a case study

Whole family approach

6.65 The intention of the whole family approach is for local authorities to take a holistic view of the person’s needs and to identify how the adult’s needs for care and support impact on family members or others in their support network.

6.66 During the assessment the local authority must consider the impact of the person’s needs for care and support on family members or other people the authority may feel appropriate. This will require the authority to identify anyone who may be part of the person’s wider network of care and support.

6.67 In considering the impact of the person’s needs on those around them, the local authority must consider whether or not the provision of any information and advice would be beneficial to those people they have identified. For example, this may include signposting to any support services in the local community.

6.68 The local authority must also identify any children who are involved in providing care. The authority may become aware that the child is carrying out a caring role through the assessment of the person needing care or their carer, or informed through family members or a school. Identification of a young carer in the family should result in an offer of a needs assessment for the adult requiring care and support and, where appropriate, the local authority must consider whether the child or young carer should be referred for a young carer’s assessment or a needs assessment under the Children Act 1989, or a young carer’s assessment under section 63 of the Care Act. Local authorities should ensure that adults’ and children’s care and support services work together to ensure the assessment is effective – for example by sharing expertise and linking processes.

6.69 When carrying out an adult’s or carer’s assessment, if it appears that a child is involved in providing care the local authority must consider:

• the impact of the person’s needs on the young carer’s wellbeing, welfare, education and development
• whether any of the caring responsibilities the young carer is undertaking are inappropriate

6.70 An assessment should take into account the parenting responsibilities of the person as well as the impact of the adult’s needs for care and support on the young carer.

6.71 Local authorities must also consider whether any of the caring tasks the child is undertaking are inappropriate. They should consider how supporting the adult with needs for care and support can prevent the young carer from undertaking excessive or inappropriate care and support responsibilities. A young carer becomes vulnerable when their caring role risks impacting upon their emotional or physical wellbeing or their prospects in education and life. This might include:

• preventing the young carer from accessing education, for example because the adult’s needs for care and support result in the young carer’s regular absence from school or impacts upon their learning
• preventing the young carer from building relationships and friendships
• impacting upon any other aspect of the young carer’s wellbeing

6.72 Inappropriate caring responsibilities should be considered as anything which is likely to have an impact on the child’s health, wellbeing or education, or which can be considered unsuitable in light of the child’s circumstances and may include:

• personal care such as bathing and toileting
• carrying out strenuous physical tasks such as lifting
• administering medication
• maintaining the family budget
• emotional support to the adult

6.73 When a local authority is determining whether the tasks a child carries out are inappropriate, it should also take into account the child’s own view wherever appropriate.

Combining assessments

6.74 Local authorities may combine an assessment of an adult needing care and support or of a carer with any other assessment it is carrying out either of that person or another where both the individual and carer agree, and the consent condition is met in relation to a child. This will also avoid the authority carrying out 2 separate assessments when the 2 assessments are intrinsically linked. If either of the individuals concerned does not agree to a combined assessment, then the assessments must be carried out separately.

Integrated assessments

6.75 People may have needs that are met by various bodies. Therefore, a holistic approach to assessment which aims to bring together all of the person’s needs may need the input of different professionals such as adult care and support, children’s services, housing, experts in the voluntary sector, relevant professionals in the criminal justice system, health or mental health professionals.

6.76 A local authority may carry out a needs or carer’s assessment jointly with another body carrying out any other assessment in relation to the person concerned, provided that person agrees. In doing so, the authority may integrate or align assessment processes in order to better fit around the needs of the individual. An integrated approach may involve working together with relevant professionals on a single assessment. It may also include putting processes in place to ensure that the person is referred for other assessments such as an assessment for after-care needs under the Mental Health Act 1983. In some settings, for example in prisons, local authorities should engage relevant professionals early to ensure assessors are prepared for carrying out an assessment in that environment.

6.77 Where more than one agency is assessing a person, they should all work closely together to prevent that person having to undergo a number of assessments at different times, which can be distressing and confusing.

6.78 Where a person has both health and care and support needs, local authorities and the NHS should work together effectively to deliver a high quality, coordinated assessment. To achieve this, local authorities should:

• shape the process around the person, involving the person and considering their experience when coordinating an integrated assessment
• work with other professionals to ensure the person’s health and care services are aligned. This will require flexibility of systems where possible, for example when sharing information. It will also be strengthened by a culture of common values and objectives at frontline level - joint visits can be helpful here
• link together various care and support plans to set out a single, shared care pathway, for example when following the Care Programme Approach for people with a severe mental disorder who need multi-agency support or intensive intervention, under the direction of a named care coordinator. See chapter 34 of the revised Code of Practice Mental Health Act 1983. A multi-agency approach is particularly important where people are enrolled on the Proactive Care Programme, which was introduced through the Avoiding Unplanned Emergency Admissions Enhanced Service in the 2014 to 2015 GP Contract.

6.79 The local authority may carry out the care and support assessment jointly with any other assessment, and can also undertake the other assessment on behalf of the other body, where this is agreed. Where an assessment involves a body from outside of the local authority, the local authority should provide any resources or facilities which may be required to carry out the assessment. Sharing resources may include the provision of facilities or relative information relating to the person being assessed. (See chapters 15-18 on Integration and Partnership Working).

NHS Continuing Healthcare

6.80 Where it appears that a person may be eligible for NHS Continuing Healthcare (NHS CHC), local authorities must notify the relevant Clinical Commissioning Group (CCG). NHS CHC is a package of on-going care that is arranged and funded solely by the NHS where the individual has been found to have a ‘primary health need’ as set out in the national framework for NHS Continuing Healthcare and NHS-funded nursing care. Such care is provided to individuals aged 18 or over, to meet needs that have arisen as a result of disability, accident or illness. Eligibility for NHS CHC places no limits on the settings in which the package of support can be offered or on the type of service delivery.

6.81 Whilst local authorities have a duty to carry out an assessment where a person has an appearance of needs and a duty to meet eligible needs, local authorities cannot arrange services that are the responsibility of the NHS (for example, care provided by registered nurses and services that the NHS has to provide because the individual is eligible for NHS CHC). However, the local authority may provide or arrange healthcare services where they are incidental or ancillary to doing something else to meet needs for care and support and the service or facility in question is of a nature that a local authority could be expected to provide. Ultimate responsibility for arranging and monitoring the services required to meet the needs of those who qualify for NHS CHC rests with the NHS.

6.82 Individuals may require care and support provided by their local authority and/or services arranged by CCGs. Local authorities and CCGs therefore have a responsibility to ensure that the assessment of eligibility for care and support and CHC respectively take place in a timely and consistent manner. If, following an assessment for NHS CHC, a person is not found to be eligible for NHS CHC, the NHS may still have a responsibility to contribute to that person’s health needs – either by directly commissioning services or by part-funding the package of support. Where a package of support is commissioned or funded by both a local authority and a CCG, this is known as a joint package of care. A joint package of care could include NHS-funded nursing care and other NHS services that are beyond the powers of a local authority to meet. The joint package could also involve the CCG and the local authority both contributing to the cost of the care package, or the CCG commissioning part of the package. Joint packages of care may be provided in a nursing or care home, or in a person’s own home, and could be by way of joint personal budget.

6.83 Local authorities and CCGs in each local area must agree a local disputes resolution process to resolve cases where there is a dispute between them about eligibility for NHS CHC, the apportionment of funding in joint funded care and support packages, or the operation of refunds guidance. Disputes should not delay the provision of the care package, and the process should make clear how funding will be provided pending resolution of the dispute. Where disputes relate to local authorities and CCGs in different geographical areas, the disputes resolution process of the responsible CCG should normally be used in order to ensure resolution in a robust and timely manner. This should include agreement on how funding will be provided during the dispute, and arrangements for reimbursement to the agencies involved once the dispute is resolved.

Roles and responsibilities

6.84 Assessments can be carried out by a range of professionals including registered social workers, occupational therapists and rehabilitation officers. Registered social workers and occupational therapists are considered to be 2 of the key professions in adult care and support. Local authorities should consider how adults who need care, carers, and assessors have access to registered social care practitioners, such as social workers or occupational therapists.

Training

6.85 It is essential that the assessment is carried out to the highest quality. The assessment must: identify the person’s needs, outcomes and how these impact on their wellbeing; consider the person’s strengths and capabilities; and consider what universal services might help the person improve their wellbeing. Local authorities must ensure that their staff have the required skills, knowledge and competence to undertake assessments and that this is maintained. This applies no matter how the assessment is carried out, including first contact, any assessment over the phone or online, or self-assessments where the person carrying out the assurance will need to have the appropriate training.

6.86 Local authorities must ensure that assessors are appropriately trained and competent whenever they carry out an assessment. This means ensuring that assessors undergo regular, up-to-date training on an ongoing basis. The training must be appropriate to the assessment, both the format of assessment and the condition(s) and circumstances of the person being assessed. They must also have the skills and knowledge to carry out an assessment of needs that relate to a specific condition or circumstances requiring expert insight, for example when assessing an individual who has autism, learning disabilities, mental health needs or dementia. This training must be maintained throughout their career. As part of maintaining their registration, social workers and occupational therapists are required to evidence their Continuing Professional Development.

6.87 When assessing particularly complex or multiple needs, an assessor may require the support of an expert to carry out the assessment, to ensure that the person’s needs are fully captured. Local authorities should consider whether additional relevant expertise is required on a case-by-case basis, taking into account the nature of the needs of the individual, and the skills of those carrying out the assessment. The local authority must ensure that the person is able to be involved as far as possible, for example by providing an interpreter where a person has a particular condition affecting communication – such as autism, blindness, or deafness. See the Equality Act for necessary provisions around reasonable adjustments.

6.88 Where the assessor does not have the necessary knowledge of a particular condition or circumstance, they must consult someone who has relevant expertise. This is to ensure that the assessor can ask the right questions relating to the condition and interpret these appropriately to identify underlying needs. A person with relevant expertise can be considered as somebody who, either through training or experience, has acquired knowledge or skill of the particular condition or circumstance. Such a person may be a doctor or health professional, or an expert from the voluntary sector, but there is no obligation for the local authority to source an expert from an outside body if the expertise is available in house.

6.89 The Department of Health has published guidance for certain groups of adults that refer to their assessment for care and support. Two specific areas are for people who are deafblind and people with autism and these pieces of guidance should be read with this guidance. Think Autism 2014, the April 2014 update to Fulfilling and Rewarding Lives, the strategy for adults with autism in England (2010), sets out that local authorities should:

• make basic autism training available for all staff working in health and social care
• develop or provide specialist training for those in roles that have a direct impact on access to services for adults with autism
• include quality autism awareness training within general equality and diversity training programmes across public services

6.90 The Care Act strengthens this guidance in relation to assessors having specialised training to assess an adult with autism. The Act places a legal requirement on local authorities that all assessors must have the skills, knowledge and competence to carry out the assessment in question. Where an assessor does not have experience in a particular condition (such as autism, learning disabilities, mental health needs or other conditions), they must consult someone with relevant experience. This is so that the person being assessed is involved throughout the process and their needs, outcomes and the impact of needs on their wellbeing are all accurately identified.

Assessment for people who are deafblind

6.91 Local authorities must ensure that an expert is involved in the assessment of adults who are deafblind, including where a deafblind person is carrying out a supported self-assessment jointly with the authority. People are regarded as deafblind ‘if their combined sight and hearing impairment causes difficulties with communication, access to information and mobility. This includes people with a progressive sight and hearing loss’ (Think Dual Sensory, Department of Health, 1995).

6.92 During an assessment if there is the appearance of both sensory impairments, even if when taken separately each sensory impairment appears relatively mild, the assessor must consider whether the person is deafblind as defined above. If a person is deafblind, this must trigger a specialist assessment. This specialist assessment must be carried out by an assessor or team that has training of at least QCF or OCN level 3, or above where the person has higher or more complex needs.

6.93 Training and expertise should in particular include; communication, one-to-one human contact, social interaction and emotional wellbeing, support with mobility, assistive technology and rehabilitation. The type and degree of specialism required should be judged on a case by case basis, according to the extent of the person’s condition and their communication needs. Local authorities should also recognise that deafblindness is a dual sensory condition which requires a knowledge and understanding of the 2 respective conditions in unison, which cannot be replicated by taking an individual approach to both senses.

6.94 The combined loss of sight and hearing can have a significant impact upon the individual even where they are not profoundly deaf and totally blind, as it is the impact of one impairment upon the other which causes difficulties. Deafblindness can have significant impact on the adult’s independence and their ability to achieve their desired outcomes. In particular deafblindness may have impact on the adult’s:

• autonomy and ability to maintain choice and control
• health and safety and daily routine
• involvement in education, work, family and social life

6.95 Local authorities should recognise that adults may not define themselves as deafblind. Instead they may describe their vision and hearing loss in terms which indicate that they have significant difficulty in their day-to-day lives. The assessment must therefore take the initiative to establish maximum possible communication with the adult to ensure that individuals are as fully engaged as possible and have the opportunity to express their wishes and desired outcomes. This is particularly important where the person is carrying out a supported self-assessment jointly with the local authority. The person ensuring that the self-assessment is a complete and accurate reflection of needs must have specific training and expertise that will enable maximum possible communication and an accurate and complete assessment.

6.96 Whilst the person carrying out the assessment must have the suitable training and expertise, it may not be possible for them to carry out the assessment without an interpreter, for instance where the adult uses sign language. Therefore, where necessary a qualified interpreter with training appropriate for the deafblind adult’s communication should be used. It is not normally appropriate to use a family member or carer as an interpreter, though sometimes this is appropriate, for instance where the adult’s communication is idiosyncratic or personal to them and would only be understood by those close to them. This should only take place where the adult agrees or – if they lack capacity – where it is in their best interests.

6.97 The assessment should take into account both the current and future needs of the person being assessed, particularly where the adult’s deafblindness is at risk of deteriorating. In such cases the adult may benefit from learning alternative forms of communication before their condition has deteriorated to a point where their current or preferred form of communication is no longer suitable.

Record keeping

6.98 Following their assessment, individuals must be given a record of their needs or carer’s assessment. A copy must also be shared with anybody else that the individual requests the local authority to share a copy with. Where an independent advocate, an Independent Mental Capacity Advocate or an Independent Mental Health Advocate is involved in supporting the individual, the local authority should keep the advocate informed so that they can support the person to understand the outcome of the assessment and its implications.

Delegating assessments

6.99 Local authorities can delegate the majority of their care and support functions, including assessment (see chapter 18). In doing so they must ensure that the body carrying out an assessment complies with all the requirements and fulfils all relevant duties under the Act and regulations (such as providing an independent advocate – (see chapter 7). Anything done by the body carrying out an assessment is treated as if done by the local authority. In respect of duties surrounding non-delegated functions, such as safeguarding (see chapter 14), local authorities must have appropriate processes in place to ensure they fulfill these functions, for example agreeing with the body that the local authority is notified if a safeguarding issue is spotted.

Eligibility

6.100 The national eligibility criteria set a minimum threshold for adult care and support needs and carer support needs which local authorities must meet. All local authorities must comply with this national threshold. Authorities can also decide to meet needs that are not deemed to be eligible if they chose to do so.

6.101 The introduction of a national eligibility threshold provides more transparency on what level of need is eligible. More clarity will support authorities in deciding whether the earlier provision of information and advice or preventative services would delay a person from developing needs which meet the eligibility criteria or whether longer-term care and support might be needed. It should also help the person needing care or their carer to think more broadly about what support might be available in the local community or through their support network to meet their needs and support the outcomes they want to achieve.

What is the national eligibility threshold for adults needing care?

6.102 The eligibility threshold for adults with care and support needs is set out in the Care and Support (Eligibility Criteria) Regulations 2015 (the ‘Eligibility Regulations’). The threshold is based on identifying how a person’s needs affect their ability to achieve relevant outcomes, and how this impacts on their wellbeing.

6.103 In considering whether an adult with care and support needs has eligible needs, local authorities must consider whether:

• the adult’s needs arise from or are related to a physical or mental impairment or illness
• as a result of the adult’s needs the adult is unable to achieve 2 or more of the specified outcomes (which are described in the guidance below)
• as a consequence of being unable to achieve these outcomes there is, or there is likely to be, a significant impact on the adult’s wellbeing

An adult’s needs are only eligible where they meet all 3 of these conditions.

Interpreting the eligibility criteria

6.104 The adult’s needs arise from or are related to a physical or mental impairment or illness. The first condition that local authorities must be satisfied about is that the adult’s needs for care and support are due to a physical or mental impairment or illness and that they are not caused by other circumstantial factors. Local authorities must consider at this stage if the adult has a condition as a result of either physical, mental, sensory, learning or cognitive disabilities or illnesses, substance misuse or brain injury. The authority should base their judgment on the assessment of the adult and a formal diagnosis of the condition should not be required.

As a result of the adult’s needs, the adult is unable to achieve 2 or more of the outcomes set out in the regulations

6.105 The second condition that authorities must consider is whether the adult is ‘unable’ to achieve 2 or more of the outcomes set out in the regulations. Authorities must also be aware that the regulations provide that ‘being unable’ to achieve an outcome includes any of the following circumstances, where the adult:

• is unable to achieve the outcome without assistance. This would include where an adult would be unable to do so even when assistance is provided. It also includes where the adult may need prompting for example, some adults may be physically able to wash but need reminding of the importance of personal hygiene
• is able to achieve the outcome without assistance but doing so causes the adult significant pain, distress or anxiety. For example, an older person with severe arthritis may be able to prepare a meal, but doing so will leave them in severe pain and unable to eat the meal
• is able to achieve the outcome without assistance, but doing so endangers or is likely to endanger the health or safety of the adult, or of others – for example, if the health or safety of another member of the family, including any child, could be endangered when an adult attempts to complete a task or an activity without relevant support
• is able to achieve the outcome without assistance but takes significantly longer than would normally be expected. For example, an adult with a physical disability is able to dress themselves in the morning, but it takes them a long time to do this, leaves them exhausted and prevents them from achieving other outcomes

6.106 The Eligibility Regulations set out a range of outcomes. Local authorities must consider whether the adult is unable to achieve 2 or more of these outcomes when making the eligibility determination. The following section of the guidance provides examples of how local authorities should consider each outcome set out in the Eligibility Regulations (which do not constitute an exhaustive list) when determining the adult’s eligibility for care and support:

a) Managing and maintaining nutrition - local authorities should consider whether the adult has access to food and drink to maintain nutrition, and that the adult is able to prepare and consume the food and drink.

b) Maintaining personal hygiene - local authorities should, for example, consider the adult’s ability to wash themselves and launder their clothes.

c) Managing toilet needs - local authorities should consider the adult’s ability to access and use a toilet and manage their toilet needs.

d) Being appropriately clothed - local authorities should consider the adult’s ability to dress themselves and to be appropriately dressed, for instance in relation to the weather to maintain their health.

e) Being able to make use of the home safely - local authorities should consider the adult’s ability to move around the home safely, which could for example include getting up steps, using kitchen facilities or accessing the bathroom. This should also include the immediate environment around the home such as access to the property, for example steps leading up to the home.

f) Maintaining a habitable home environment - local authorities should consider 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. An adult may require support to sustain their occupancy of the home and to maintain amenities, such as water, electricity and gas.

g) Developing and maintaining family or other personal relationships - local authorities should consider whether the adult is lonely or isolated, either because their needs prevent them from maintaining the personal relationships they have or because their needs prevent them from developing new relationships.

h) Accessing and engaging in work, training, education or volunteering - local authorities should consider whether the adult has an opportunity to apply themselves and contribute to society through work, training, education or volunteering, subject to their own wishes in this regard. This includes the physical access to any facility and support with the participation in the relevant activity.

i) Making use of necessary facilities or services in the local community including public transport and recreational facilities or services - local authorities should consider the adult’s ability to get around in the community safely and consider their ability to use such facilities as public transport, shops or recreational facilities when considering the impact on their wellbeing. Local authorities do not have responsibility for the provision of NHS services such as patient transport, however they should consider needs for support when the adult is attending healthcare appointments.

j) Carrying out any caring responsibilities the adult has for a child - local authorities should consider any parenting or other caring responsibilities the person has. The adult may for example be a step-parent with caring responsibilities for their spouse’s children.

As a consequence there is, or there is likely to be, a significant impact on the adult’s wellbeing

6.107 The third condition that must be met is that local authorities must consider whether the adult’s needs and their inability to achieve the outcomes above cause or risk causing a significant impact on their wellbeing. The meaning of wellbeing is set out in Section 1 of the Care Act and more detail is described in chapter 1 of this guidance.

6.108 Local authorities must determine how the adult’s inability to achieve the outcomes above impacts on their wellbeing. Where the adult is unable to achieve more than one of the outcomes, the local authority does not need to consider the impact of each individually, but should consider whether the cumulative effect of being unable to achieve those outcomes is one of a ‘significant impact on wellbeing’. In doing so, local authorities should also consider whether:

• the adult’s inability to achieve the outcomes above impacts on at least one of the areas of wellbeing (as described in Section 1 of the Act and chapter 1 of this guidance) in a significant way
• the effect of the impact on a number of the areas of wellbeing mean that there is a significant impact on the adult’s overall wellbeing

6.109 The term ‘significant’ is not defined by the regulations, and must therefore be understood to have its everyday meaning. Local authorities will have to consider whether the adult’s needs and their consequent inability to achieve the relevant outcomes will have an important, consequential effect on their daily lives, their independence and their wellbeing.

6.110 In making this judgment, local authorities should look to understand the adult’s needs in the context of what is important to him or her. Needs may affect different people differently, because what is important to the individual’s wellbeing may not be the same in all cases. Circumstances which create a significant impact on the wellbeing of one individual may not have the same effect on another.

6.111 The table below illustrates the interplay of the 3 conditions above, the outcomes listed in the eligibility regulations and the wellbeing principle, which is broken down into areas of wellbeing in (see chapter 1: Promoting wellbeing).

Eligibility decision process

1. Needs

The adult’s needs arise from or are related to a physical or mental impairment or illness.

2. Outcomes

As a result of the needs, the adult is unable to achieve 2 or more of the following:

1. a) managing and maintaining nutrition
2. b) maintaining personal hygiene
3. c) managing toilet needs
4. d) being appropriately clothed
5. e) maintaining a habitable home environment
6. f) being able to make use of the home safely
7. g) developing and maintaining family or other personal relationships
8. h) accessing and engaging in work, training, education or volunteering
9. i) making use of necessary facilities or services in the local community including public transport and recreational facilities or services
10. j) carrying out any caring responsibilities the adult has for a child

3. Wellbeing

As a consequence, there is or is likely to be a significant impact on the adult’s wellbeing, including the following:

1. a) personal dignity (including treatment of the individual with respect)
2. b) physical and mental health and emotional wellbeing
3. c) protection from abuse and neglect
4. d) control by the individual over day-to-day life (including over care and support provided and the way it is provided)
5. e) participation in work, education, training or recreation
6. f) social and economic wellbeing
7. g) domestic, family and personal relationships
8. h) suitability of living accommodation
9. i) the individual’s contribution to society

6.112 The case studies which follow demonstrate examples of how eligibility determinations may be made. The purpose of these case studies is to illustrate eligibility on the basis of significant impact on wellbeing where the person has needs caused by a physical or mental impairment or illness which mean they are unable to achieve 2 or more outcomes specified in the Eligibility Regulations. Significant impact on wellbeing is personal, so although 2 people are in similar circumstances, the impact on their wellbeing is different.

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Case Study 1: John (eligible)

John is 32 and has been referred by his mother for an assessment, who is concerned for John and his future. John is unemployed and lives with his mother and she is getting to an age where she realises that she might not be able to provide the same level of care and support for her son as she has done so far. John is able to manage his own personal care, but his mother does all the housework for both of them. John feels increasingly isolated and will not leave the house without his mother. It is important to John that he is intellectually stimulated and there is a chess club nearby which he would like to join, but John does not feel confident about this due to his anxiety in social situations.

Needs

Adult on the autistic spectrum.

Outcomes

John has severe difficulties socialising and co-operating with other people.

He only has transactional exchanges and cannot maintain eye contact. John knows that others feel uneasy around him, and spends a lot of his time alone. As a result, John is unable to achieve the following outcomes: Developing and maintaining family or other personal relationships and making use of necessary facilities and services in the community.

Impact on wellbeing

John is too anxious to initiate developing friendships on his own although he would like to and he feels lonely and depressed most of the time. His nervousness also affects his ability to take advantage of facilities in the community, which could help him feel less lonely. Feeling anxious and lonely has a significant impact on his wellbeing

Decision: Eligible

Next Actions

John’s local authority thinks John’s needs are eligible. Both John and the local authority agree that the most effective way of meeting John’s needs is to develop his confidence to join the chess club. John uses his personal budget to pay for a support worker to accompany him to an autism social skills group, and to the chess club and to travel with him on the bus to get there.

John’s local authority notes that John’s mother could need support too and offers her a carer’s assessment.

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Case study 2: Dave (not eligible)

Dave is 32 and has been referred by his mother for an assessment, who is concerned for Dave and his future. Dave lives with his mother and she is getting to an age where she realises that she might not be able to provide the same level of care and support for her son as she has done so far.

Dave is able to manage his own personal care, but his mother does all the housework for both of them. Dave also works, but would like to get a job that is a better match for his intellectual abilities as his current job does not make the most of his numerical skills. Dave’s social contact is mainly online because he feels more comfortable communicating this way and he spends a lot of time in his room on his computer.

Category

Adult on the autistic spectrum.

Needs

Dave struggles severely in social situations leading to difficulties accessing work and cooperating with other people. He only has transactional exchanges with others and cannot maintain eye contact. Dave knows that others feel uneasy around him and spends a lot of his time alone.

Impact on wellbeing

Dave is not in ideal employment, but has access to and is engaged in work. This has some impact on his wellbeing but not to a significant extent.

Dave prefers to socialise with people online. It emerges from conversations with Dave that he has access to those personal relationships that he considers essential. Dave is contributing to society, has contact with others, is in employment and is able to look after himself.

Decision: Not Eligible

Dave has difficulties doing some of the things that many other people would think should be a natural part of daily living and he is unable to participate in recreational activities in a conventional sense. Those aspects of his wellbeing that are affected by the needs caused by his autism are not so significantly affected that Dave’s overall wellbeing is at risk.

The local authority decides that Dave’s needs are not eligible, because they do not have a significant effect on his wellbeing despite his mother’s concerns.

Next Actions

The local authority records Dave’s assessment and sends him a copy. They include information about a local autism support group. Dave’s local authority notes that Dave’s mother could well need support and offers her a carer’s assessment.

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Fluctuating needs

6.113 Individuals with fluctuating needs may have needs which are not apparent at the time of the assessment, but may have arisen in the past and are likely to arise again in the future. Therefore local authorities must consider an individual’s need over an appropriate period of time to ensure that all of their needs have been accounted for when eligibility is being determined. Where fluctuating needs are apparent, this should also be factored into the care plan, detailing the steps local authorities will take to meet needs in circumstances where these fluctuate. For example, an adult with a mental illness, which has been managed in the past 8 months but which could deteriorate, if circumstances in the adult’s life change. In such situations, local authorities must consider the nature of the adult’s needs have been over the past year to get a complete picture of the adult’s level of need.

6.114 When considering the type of needs an adult may have, local authorities should note that there is no hierarchy of needs or of the areas of wellbeing as described in chapter 1 of this guidance.

Considering needs met by carers in eligibility determinations

6.115 The eligibility determination must be made based on the adult’s needs and how these impact on their wellbeing. Authorities must only take consideration of whether the adult has a carer, or what needs may be met by a carer after the eligibility determination when a care and support plan is prepared. The determination must be based solely on the adult’s needs and if an adult does have a carer, the care they are providing will be taken into account when considering whether the needs must be met. Local authorities are not required to meet any eligible needs which are being met by a carer, but those needs should be recognised and recorded as eligible during the assessment process. This is to ensure that should there be a breakdown in the caring relationship, the needs are already identified as eligible, and therefore local authorities must take steps to meet them without further assessment.

What is the national eligibility threshold for carers?

6.116 Carers can be eligible for support in their own right. The national eligibility threshold for carers is also set out in the Care and Support (Eligibility Criteria) Regulations 2015. The threshold is based on the impact a carer’s needs for support has on their wellbeing.

6.117 In considering whether a carer has eligible needs, local authorities must consider whether:

• the needs arise as a consequence of providing necessary care for an adult
• the effect of the carer’s needs is that any of the circumstances specified in the Eligibility Regulations apply to the carer
• as a consequence of that fact there is, or there is likely to be, a significant impact on the carer’s wellbeing

A carer’s needs are only eligible where they meet all 3 of these conditions.

Interpreting the carers’ eligibility criteria

The needs arise as a consequence of providing necessary care for an adult

6.118 Local authorities must consider whether the carer’s need for support arises because they are providing care to an adult. Carers can be eligible for support whether or not the adult for whom they care has eligible needs. The eligibility determination must be made based on the carer’s needs and how these impact on their wellbeing. The determination should be made without consideration of whether or not the adult the carer cares for, has eligible needs.

6.119 The carer must also be providing necessary care. If the carer is providing care and support for needs which the adult is capable of meeting themselves, the carer may not be providing necessary support. In such cases, local authorities should provide information and advice to the adult and carer about how the adult can use their own strengths or services available in the community to meet their needs.

The effect of the carer’s needs is that any of the circumstances specified in the Eligibility Regulations apply to the carer

6.120 The second condition that authorities must consider is whether the carer’s physical or mental health is either deteriorating or is at risk of doing so, or whether the carer is unable to achieve any of a list of other outcomes which may apply.

6.121 Authorities must be aware that the regulations provide that ‘being unable’ to achieve outcomes, includes circumstances where the carer:

• is unable to achieve the outcome without assistance. This includes where the carer would be unable to achieve an outcome even if assistance were provided. A carer might, for example, be unable to fulfill their parental responsibilities unless they receive support in their caring role
• is able to achieve the outcome without assistance, but doing so causes or is likely to cause significant pain, distress or anxiety. A carer might for example be able to care for the adult and undertake fulltime employment, but if doing both, this causes the carer significant distress, the carer should not be considered able to engage in employment
• is able to achieve the outcome without assistance but doing so is likely to endanger the health or safety of the carer or any adults or children for whom the carer provides care. A carer might for example be able to provide care for their family and deliver necessary care for the adult, but, where this endangers the adult with care and support needs, for example, because the adult receiving care would have to be left alone while other responsibilities are met, the carer should not be considered able to meet the outcome of caring for their family

6.122 The Eligibility Regulations set out a range of outcomes. Local authorities must consider whether the carer is able to achieve these outcomes or if due to the nature of their needs they are unable to achieve any of the outcomes. The carer will have eligible needs met if they are unable to achieve any of these outcomes and as a result there is, or there is likely to be, a significant impact on their wellbeing.

6.123 The following section of the guidance provides examples of how local authorities should consider the outcomes set out in the Eligibility Regulations when they determine whether a carer meets the eligibility criteria. To be eligible, a carer must be unable to achieve any of the following outcomes:

Criteria	Examples of how to interpret the criteria
(i) carrying out any caring responsibilities the carer has for a child	Local authorities should consider any parenting or other caring responsibilities the carer has for a child in addition to their caring role for the adult. For example, the carer might be a grandparent with caring responsibilities for their grandchildren while the grandchildren’s parents are at work.
(ii) providing care to other persons for whom the carer provides care	Local authorities should consider any additional caring responsibilities the carer may have for other adults. For example, a carer may also have caring responsibilities for a parent in addition to caring for the adult with care and support needs.
(iii) maintaining a habitable home environment	Local authorities should consider whether the condition of the carer’s home is safe and an appropriate environment to live in and whether it presents a significant risk to the carer’s wellbeing. A habitable home should be safe and have essential amenities such as water, electricity and gas.
(iv) managing and maintaining nutrition	Local authorities should consider whether the carer has the time to do essential shopping and to prepare meals for themselves and their family.
(v) developing and maintaining family or other significant personal relationships	Local authorities should consider whether the carer is in a position where their caring role prevents them from maintaining key relationships with family and friends or from developing new relationships where the carer does not already have other personal relationships.
(vi) engaging in work, training, education or volunteering	Local authorities should consider whether the carer can continue in their job, and contribute to society, apply themselves in education, volunteer to support civil society or have the opportunity to get a job, if they are not in employment.
(vii) making use of necessary facilities or services in the local community	Local authorities should consider whether the carer has an opportunity to make use of the local community’s services and facilities and for example consider whether the carer has time to use recreational facilities such as gyms or swimming pools.
(viii) engaging in recreational activities	Local authorities should consider whether the carer has leisure time, which might for example be some free time to read or engage in a hobby.

As a consequence of that fact there is, or there is likely to be, a significant impact on the carer’s wellbeing

6.124 The third condition that must be met is that local authorities must consider whether the carer’s needs and their inability to achieve the outcomes above present a significant impact on the carer’s wellbeing. ‘Wellbeing’ is defined by referring to examples of specific areas in Section 1 of the Care Act (see chapter 1). In doing so, local authorities should consider whether:

• the carer’s needs and inability to achieve the outcomes impact on an area of the carer’s wellbeing in a significant way
• the impact on a number of the areas of wellbeing is such that they have a significant impact on an adult’s overall wellbeing

6.125 The term ‘significant’ is not defined by the Regulations, and must therefore be understood to have its everyday meaning. Local authorities will have to consider whether the carer’s needs and their inability to achieve the outcomes will have an important, consequential effect on their daily lives, their independence and their own wellbeing.

6.126 In making this judgment, local authorities should look to understand the carer’s needs in the context of what is important to them. The impact of needs may affect different carers differently, because what is important to the individual’s wellbeing may not be the same in all cases. Circumstances which create a significant impact on the wellbeing of one individual may not have the same effect on another.

6.127 When considering the type of needs a carer may have, local authorities should note that there is no hierarchy of needs or of the areas of wellbeing as described in chapter 1 of the guidance.

6.128 The following illustrates the interplay of the outcomes listed in the eligibility regulations and the wellbeing principle, which is broken down into areas of wellbeing in Chapter 1 of this guidance.

Carers’ eligibility decision process

1. Needs

The needs arise as a consequence of providing necessary care to an adult, and the carer is ‘unable’ to achieve the following:

2. Outcomes

As a result of the carer’s needs, either:

• the carer’s physical; or mental health is, or is at risk of, deteriorating
• the carer is unable to achieve any of the following outcomes:
  • carrying out any caring responsibilities the carer has for a child
  • providing care to other persons for whom the carer provides care
  • maintaining a habitable home environment
  • managing and maintaining nutrition
  • developing and maintaining family or other significant personal relationships
  • accessing and engaging in work, training, education or volunteering
  • making use of necessary facilities or services in the local community including recreational facilities or services
  • engaging in recreational activities

3. Wellbeing

As a consequence, there is or is likely to be a significant impact on the carer’s wellbeing, including:

• personal dignity (including treatment of the individual with respect)
• physical and mental health and emotional wellbeing
• protection from abuse and neglect
• control by the individual over day-to-day life (including over care and support provided and the way it is provided)
• participation in work, education, training or recreation
• social and economic wellbeing
• domestic, family and personal relationships
• suitability of living accommodation
• the individual’s contribution to society

6.129 The case studies which follow demonstrate examples of how eligibility determinations may be made. The purpose of these case studies is to illustrate eligibility on the basis of significant impact on wellbeing where the carer has needs caused by providing necessary care. Significant impact on wellbeing is personal, so although 2 people are in similar circumstances, the impact on their wellbeing is different.

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Case Study 1: Deirdre (not eligible)

Deirdre is 58 and has been caring for her neighbour for the past 6 years. Deirdre has been coping with her caring responsibilities, which include checking in on her neighbour, doing her shopping and cleaning and helping her with the cooking every other day.

Deirdre works 20 hours a week at the local school, and she is also helping her daughter by picking up her grandchild after school. Deirdre’s son is concerned that she is taking on too much and notices that she is tired. Deirdre’s son persuades her to ask the local authority for a carer’s assessment.

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Caring responsibilities

Neighbour with COPD.

Outcomes

Deirdre enjoys the variety that her working life and caring role provide. She would like to be able to spend more time with her grandchild in the afternoons, but recognises that there is a balance between doing this and caring for her neighbour. Deirdre’s needs impact on the following outcomes:

• carrying out caring responsibilities the carer has for a child
• engaging in recreational activities

Impact on wellbeing

Deirdre’s needs are impacting on a few outcomes.

Deirdre enjoys her caring responsibility for her grandchild and would like more free time. On the other hand, her caring roles are fulfilling so although Deirdre is tired at the end of the day, her local authority does not think her wellbeing is significantly affected.

Decision: Not Eligible

The local authority decides that Deirdre is not eligible because her wellbeing is not significantly affected.

Next actions

The local authority recognises that Deirdre could do with some advice to help her manage her day so that she can find some time for herself and so she does not get tired. They advise on how she may reduce some of her tasks such as sitting down with her neighbour to order their food shopping online rather than carrying them home. They make contact with a local carers’ organisation and the local authority makes sure Deirdre is able to access it. The organisation is able to provide additional advice.

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Case study 2: Sam (eligible)

Sam is 38 and cares for his mother who has early-stage dementia. Sam’s mother has telecare, but he still checks in on her daily, and does her shopping, cooking and laundry. Sam is a divorced father of 2 children, who live with him every other week. Sam works fulltime in an IT company and has come forward for an assessment as he is starting to feel unable to cope with his various responsibilities in the weeks when he looks after his children. Sam has made an arrangement with his employer that he can work longer hours on the weeks when the children are with their mother and fewer when he has the children.

Caring responsibilitie

Mother with early stage dementia.

Outcomes

Sam wants to spend more time with his children and for instance be able to free up an hour in the afternoon to help them with their homework, so it doesn’t have to be done in the evening when the children are tired. Sam’s needs impact on the following outcomes:

• carrying out caring responsibilities the carer has for a child
• engaging in recreational activities

Impact on wellbeing

Sam’s responsibilities impact on a few important outcomes. Sam is starting to feel like he is failing as a parent and it affects the relationship he has with his children, his ex-wife, and his mother. He also worries that his ability to stay in work would be in jeopardy unless he receives support. Sam seems quite stressed and anxious.

Decision: Eligible

The local authority decides that Sam’s fluctuating needs are eligible for support, because it perceives that they have a significant impact on his wellbeing. If the local authority supports Sam to maintain his current role, everyone is better off, because Sam can stay in employment, sustain his family relationships and provide security for his mother.

Next actions

The local authority gives Sam a direct payment which he uses to pay for a care worker to come in for 3 days every other week to check on his mother and make her a meal. This gives Sam more time to spend with his children, doing homework with them and spending some more relaxed time with them.

The local authority directs Sam to a carers’ organisation which provides Sam with information about his rights at work and how to speak to his employers.

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Fluctuating needs

6.130 Carers with fluctuating needs may have needs which are not apparent at the time of the assessment, but may have arisen in the past and are likely to arise again in the future. Therefore local authorities must consider an individual’s need over an appropriate period of time to ensure that all of their needs have been accounted for when the eligibility is being determined. Where fluctuating needs are apparent, this should also be factored into the care plan, detailing the steps local authorities will take to meet needs in circumstances where these fluctuate. For example, a carer could be caring for an adult with a mental illness, who has managed their condition well in the past 8 months, but who could deteriorate, if circumstances in the adult’s life change. In such situations, local authorities must consider how the carer’s needs change as a result of the fluctuation in the needs of the person they are caring for. Authorities must get a complete picture of the carer’s level of need over an appropriate period.

6.132 The level of a carer’s need can also fluctuate irrespective of whether the needs of the adult for whom they care, fluctuate. For example, if the carer is a parent of school children, they may not have the same level of need for support during term time as during school holidays.

What must local authorities do after the eligibility determination?

6.132 When the eligibility determination has been made, local authorities must provide the person to whom the determination relates (whether that is an adult with care and support needs, or a carer with support needs) with a copy of their decision.

6.133 Where the person is found to have no eligible needs, local authorities must provide information and advice on what can be done to meet or reduce the needs (for example what support might be available in the community to help the adult or carer) and what can be done to prevent or delay the development of needs in the future. Local authorities should consider how this package of information can be tailored to the needs which the person does have, with the aim of delaying deterioration and preventing future needs, and reflect the availability of local support (see also chapter 2 on preventative services and chapter 3 on information and advice).

6.134 If the adult has some eligible needs, the local authority must:

• agree with the adult which of their needs they would like the local authority to meet. The person may not wish to have support in relation to all their needs – they may, for example, intend to arrange alternative services themselves to meet some needs. Others may not wish for the local authority to meet any of their needs, but approach the authority only for the purposes of determining eligible needs
• consider how the local authority may meet those needs. This does not replace or pre-empt the care and support planning process (see chapters 10 –13), but is an early consideration of the potential support options, in order to determine whether some of those may be services for which the local authority makes a charge. Where that is the case, the local authority must carry out a financial assessment (see chapter 8).
• establish whether the person meets the ordinary residence requirement. This applies differently for adults with care and support needs and for carers. In the case of the adult, they must be ordinarily resident in the authority’s area. In the case of the carer, the person for whom they care must be ordinarily resident in the authority’s area. This is because carers’ needs are met by local authorities where the adult with the needs for care and support lives, not the authority where the carer lives. Determining ordinary residence at this stage should not lead to a delay in meeting eligible needs - more guidance on ordinary residence can be found in chapter 19

7. Independent advocacy

This chapter provides guidance on:

• Sections 67 and 68 of the Care Act 2014
• the Care and Support (Independent Advocacy) Regulations 2014

This chapter covers:

• local authorities’ responsibilities to provide independent advocacy
• matters which a local authority must consider in deciding whether an individual would experience substantial difficulty in being involved with care and support ‘process’ or safeguarding
• circumstances in which an advocate must be provided
• the role of the advocate and how independent advocates are to carry out their functions

7.1 The purpose of this section of guidance is to ensure that local authorities fully understand their duties in relation to the provision of independent advocacy and to assist them in carrying out these duties effectively.

7.2 There are duties to arrange an independent advocate for all adults, as part of their own assessment and care planning and care reviews and to those in their role as carers. It also applies to children who are approaching the transition to adult care and support, when a child’s needs assessment is carried out, and when a young carer’s assessment is undertaken.

7.3 There is also a separate duty to arrange an independent advocate for adults who are subject to a safeguarding enquiry or Safeguarding Adults Review (SAR).

7.4 Local authorities must arrange an independent advocate to facilitate the involvement of a person in their assessment, in the preparation of their care and support plan and in the review of their care plan, as well as in safeguarding enquiries and SARs if 2 conditions are met. That if an independent advocate were not provided then the person would have substantial difficulty in being fully involved in these processes and second, there is no appropriate individual available to support and represent the person’s wishes who is not paid or professionally engaged in providing care or treatment to the person or their carer. The role of the independent advocate is to support and represent the person and to facilitate their involvement in the key processes and interactions with the local authority and other organisations as required for the safeguarding enquiry or SAR.

7.5 Everyone should have access to information and advice on care and support and keeping safe from abuse or neglect (see chapters 3 and 14). Prior to making contact with the local authority, there may be some people who require independent advocacy to access that information and advice. Local authorities will need to consider such needs in ensuring that the information and advice service is accessible. Subsequently, once a person has contacted the local authority, or come to the local authority’s attention as a result of a safeguarding concern, they must be actively involved in identifying their needs through assessment, in developing their care and support plan, and in leading their care reviews, where relevant, and being involved in any safeguarding enquiry or SAR. The aim of the duty to provide advocacy is to enable people who have substantial difficulty in being involved in these processes to be supported in that involvement as fully as possible, and where necessary to be represented by an advocate who speaks on their behalf. The Equality Act 2010, requires that reasonable adjustments should be made to ensure that disabled people have equal access to information and advice services. Provision of such adjustments, information in different formats for example, may reduce or remove a substantial difficulty a person may have in being involved. The ultimate aim is for people’s wishes, feelings and needs to be at the heart of the assessment, care planning and review processes. This needs to be just as true for those who are the subject of a safeguarding enquiry or safeguarding adult review (SAR).

Advocacy and the duty to involve

7.6 Local authorities must involve people in decisions made about them and their care and support or where there is to be a safeguarding enquiry or SAR. Involvement requires the local authority helping people to understand how they can be involved, how they can contribute and take part and sometimes lead or direct the process. People should be active partners in the key care and support processes of assessment, care and support and support planning, review and any enquiries in relation to abuse or neglect. No matter how complex a person’s needs, local authorities are required to involve people, to help them express their wishes and feelings, to support them to weigh up options, and to make their own decisions.

7.7 The duty to involve applies in all settings, including for those people living in the community, in care homes or, apart from safeguarding enquiries and SARs, ^{[footnote 24]} in prisons, for example.

7.8 Local authorities must form a judgment about whether a person has substantial difficulty in being involved with these processes. If it is thought that they do, and that there is no appropriate individual to support and represent them for the purpose of facilitating their involvement, then the local authority must arrange for an independent advocate to support and represent the person.

7.9 Many of the people who qualify for advocacy under the Care Act will also qualify for advocacy under the Mental Capacity Act 2005. The same advocate can provide support as an advocate under the Care Act and under the Mental Capacity Act. This is to enable the person to receive seamless advocacy and not to have to repeat their story to different advocates. Under whichever legislation the advocate providing support is acting, they should meet the appropriate requirements for an advocate under that legislation.

Judging ‘substantial difficulty’ in being involved

7.10 Local authorities must consider for each person, whether they would have substantial difficulty in engaging with the local authority care and support processes. The Care Act defines 4 areas in any one of which a substantial difficulty might be found, which are set out below. Understanding relevant information

7.11 The first area to consider is ‘understanding relevant information’. Many people can be supported to understand relevant information, if it is presented appropriately and if time is taken to explain it. Some people, however, will not be able to understand relevant information, for example if they have mid-stage or advanced dementia.

Retaining information

7.12 The second area to consider is ‘retaining information’. If a person is unable to retain information long enough to be able to weigh up options and make decisions, then they are likely to have substantial difficulty in engaging and being involved in the process.

Using or weighing the information as part of engaging

7.13 The third area is ‘using or weighing the information as part of the process of being involved.’ A person must be able to weigh up information, in order to participate fully and express preferences for or choose between options. For example, they need to be able to weigh up the advantages and disadvantages of moving into a care home or terminating an undermining relationship. If they are unable to do this, they will have substantial difficulty in engaging and being involved in the process.

Communicating their views, wishes and feelings

7.14 The fourth area involves ‘communicating their views, wishes and feelings’. A person must be able to communicate their views, wishes and feelings whether by talking, writing, signing or any other means, to aid the decision process and to make priorities clear. If they are unable to do this, they will have substantial difficulty in engaging and being involved in the process.

7.15 For example, a person with mid-stage or advanced dementia, significant learning disabilities, a brain injury or mental ill health may be considered to have substantial difficulty in communicating their views, wishes and feelings. But equally a person with Asperger’s may be considered, as may a frail older person who does not have any diagnosis but is confused as a result of an infection, or a person who is near the end of their life and appears disengaged from involvement and decision-making. Within this context, it is the person’s ability to communicate their views, wishes and feelings which is fundamental to their involvement rather than the diagnosis or specific condition.

7.16 Both the Care Act and the Mental Capacity Act recognise the same areas of difficulty, and both require a person with these difficulties to be supported and represented, either by family or friends, or by an advocate in order to communicate their views, wishes and feelings.  

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Case Study

Stephen sustained a brain injury in a fall; he has completed 6 months in a specialist residential rehabilitation setting and the next step is an assessment of need for his continuing support.

Prior to this, the social worker telephones Stephen’s treating clinician who confirms that because of his brain injury, Stephen lacks insight into the effects this has had on him and he also has difficulty processing lots of information quickly – this is a common symptom of brain injury.

Therefore the social worker decides on an initial short meeting to determine Stephen’s needs and knows her first step will be to evaluate if Stephen has difficulty understanding and therefore being involved in the assessment process. If so, support could come from a carer, family member or friend or Mental Capacity Advocate, as she is aware lack of insight does not necessarily determine lack of capacity.

The social worker notes that Stephen is able to retain information about who she is and why she is meeting with him. He is articulate and can converse well about his plans for the future which includes detailed plans to meet up with friends and return to work again. However, a pre-assessment conversation with his mother, confirms that his friendship group has significantly diminished as his friends find it difficult to understand the differences in his behaviour since his fall and doubts whether he will be able to return to full-time employment. The social worker judges that because Stephen lacks insight into his personal relationships and future plans, he may well also have trouble estimating his true care and support needs. At this point the social worker decides that Stephen would have substantial difficulty in being fully involved in the rest of the assessment process and would therefore benefit from assistance.

Stephen is adamant that he wants to act and make decisions independently of his mother, though he is happy for her to inform the assessment process. The social worker decides that Stephen’s mother would not be an appropriate person under the Care Act to support his involvement in the needs assessment. The social worker talks to Stephen about how an independent advocate could help him make sure his views, beliefs, wishes and aspirations are taken into account in the assessment, and with his agreement, arranges for an independent advocate with specialist brain injury training to support him. The independent advocate meets Stephen but also talks to his mother to get a true picture of Stephen’s current needs and wishes and to ascertain the differences between how Stephen is now and prior to acquiring his brain injury. The social worker carries out the needs assessment with Stephen who is supported by his independent advocate, and with Stephen’s approval, input from his mother.

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When the duty to provide independent advocacy applies

Assessment of needs

7.17 From the point of first contact, request or referral (including self-referral) for an assessment, the local authority must involve the person (see chapter 6 on Assessment). They must initially consider the best way of involving the person in the assessment processes, which is appropriate and proportionate to the person’s needs and circumstances. In some cases this may be relatively brief, in others it may consist of a series of interviews, in the person’s own home or other care settings, over a period of time.

7.18 At the start of the assessment process, if it appears to the local authority that a person has care and support or support needs, and throughout any subsequent part of the process, the local authority must judge whether a person has substantial difficulty in involvement with the assessment, the care and support planning or review processes. The identification of a potential need for advocacy may arise through the process, from the person themselves, carers or family. Where an authority has outsourced or commissioned all or some of this process, the authority will maintain overall responsibility for this judgement.

7.19 Where the local authority considers that a person has substantial difficulty in engaging with the assessment process, then they must consider whether there is anyone appropriate who can support the person be fully involved. This might for example be a carer (who is not professionally engaged or remunerated), a family member or friend. If there is no one appropriate, then the local authority must arrange for an independent advocate. The advocate must support and represent the person in the assessment, in the care and support planning, and the review. This applies to the following:

• a needs assessment under section 9 of the Care Act
• a carer’s assessment under section 10
• the preparation of a care and support plan or support plan under section 25
• a review of care and support plan or support plan under section 27
• a child’s needs assessment under section 58
• a child’s carer’s assessment under section 60 (therefore some people below 16 years of age)
• a young carer’s assessment under section 63
• safeguarding under section 68

7.20 As part of the assessment and the care and support plan, the local authority must have regard to the need to help protect people from abuse and neglect. They should assist the person to identify any risks and ways to manage them. They should also assist the person to decide how much risk they can manage. The local authority must also have regard to ensuring that any restriction on the person’s rights or freedom is kept to the minimum necessary. Restrictions should be carefully considered and frequently reviewed. Any potential deprivation of liberty must be authorised, either by a Deprivation of Liberty Authorisation by the local authority or the Court of Protection under the Deprivation of Liberty Safeguards in the Mental Capacity Act.

7.21 Where it appears that a person may be eligible for NHS Continuing Healthcare (NHS CHC), local authorities must notify the relevant NHS body. NHS CHC is a package of ongoing care that is arranged and funded solely by the NHS where the individual has complex ongoing healthcare needs of a type or quantity such that they are found to have a ‘primary health need’ as set out in the national framework for NHS Continuing Healthcare and NHS-funded nursing care. Where an individual is not eligible for NHS CHC, local authorities still have a duty to carry out an assessment of needs where a person has an appearance of needs and a duty to meet those eligible needs (see chapter 6 on assessment) and therefore have a consequential duty to consider the need for an independent advocate to support the person’s involvement in that assessment. This guidance applies equally to those people whose needs are being jointly assessed by the NHS and the local authority or where a package of support is, planned, commissioned or funded by both a local authority and a Clinical Commissioning Group (CCG), known as a joint package of care.

7.22 These processes and arrangements have historically been difficult for individuals, their carers, family or friends, to understand and be involved in. Local authorities (with CCGs) will therefore want to consider the benefits of providing access to independent advice or independent advocacy for those who do not have substantial difficulty and/or those who have an appropriate person to support their involvement. Effective joint commissioning arrangements would involve:

• dealing with the person holistically, providing a seamless service and avoiding duplication
• reducing communication break-down
• involvement of the person, family and carers
• effective partnership working for health and social care addressing needs together
• improved communication and continued care to achieve joint outcomes

7.23 Under the Mental Health Act 1983 (MHA) certain people, known as ‘qualifying patients’, are entitled to the help and support from an Independent Mental Health Advocate (IMHA). Section 117 of the MHA places a duty on the NHS and local authorities to provide aftercare and this will usually involve a joint assessment (often under the Care Programme Approach) including an assessment of the person’s care and support needs, a care and support or support plan and subsequent review (which may reach a decision that a person is no longer in need of aftercare). Those people who do not retain a right to an IMHA, whose care and support needs are being assessed, planned or reviewed should be considered for an advocate under the Care Act, if they have substantial difficulty in being involved and if there is no appropriate person to support their involvement (see paragraph 7.32).

Safeguarding enquiries and safeguarding adult reviews (SARs)

7.24 The local authority must arrange, where necessary, for an independent advocate to support and represent an adult who is the subject of a safeguarding enquiry or a safeguarding adult review. Where an independent advocate has already been arranged under s67 Care Act or under MCA 2005 then, unless inappropriate, the same advocate should be used.

7.25 Effective safeguarding is about seeking to promote an adult’s rights as well as about protecting their physical safety and taking action to prevent the occurrence or reoccurrence of abuse or neglect. It enables the adult to understand both the risk of abuse and actions that she or he can take, or ask others to take, to mitigate that risk.

7.26 There is increasing case law on adult safeguarding from the Court of Protection which advocates and practitioners should be aware.

7.27 If a safeguarding enquiry needs to start urgently then it can begin before an advocate is appointed but one must be appointed as soon as possible. All agencies need to know how the services of an advocate can be accessed and what their role is.

7.28 It is critical in this particularly sensitive area (whether an enquiry or a SAR) that the adult is supported in what may feel a daunting process which may lead to some very difficult decisions. An individual who is thought to have been abused or neglected may be so demoralised, frightened, embarrassed or upset that independent advocacy provided under section 68 to help them to be involved will be crucial.  

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Case Study Lynette

Lynette, who has learning disabilities, lives in a care home. A support worker contacted the local authority because another resident, Fred, has come into Lynette’s room late at night shouting on several occasions and most recently was seen pushing her. A safeguarding enquiry is started and the local authority appoint an independent advocate to support Lynette as they are concerned that she cannot express herself easily. When interviewed by the social worker Lynette cannot describe what happened. The social worker and advocate agree that the advocate will help Lynette to communicate how she feels.

The advocate spends time with Lynette. She explains what is happening and communicates with Lynette about different people that she lives with, including using photos, finding out more about her feelings. Lynette appears to be generally happy around the house and when going out, but is very distressed when she sees Fred in person, or even when she sees a picture of him. The advocate makes clear to the Local Authority what Lynette has communicated.

The local authority finds that whilst there is no doubt that Fred did what was reported, he may have done so as a result of his own confusion and distress. They agree a proposal from the registered manager of the care home that alarms will be put on Fred’s door and staffing numbers increased to prevent a recurrence. The local authority agrees to review the situation after some weeks during which time the advocate stays in contact with Lynette in order to understand the impact of this decision on Lynette. The advocate finds that Lynette remains distressed by Fred’s presence. She is concerned that the measures in place are not sufficient and writes this in a report to the local authority detailing what Lynette has communicated about where she lives and about Fred. The local authority agrees to look at what further action may be needed which might include considering whether Lynette and Fred should continue to share accommodation.

The main aspect of wellbeing promoted is protection from abuse and neglect, but also personal dignity and emotional wellbeing. The local authority has also demonstrated its regard for Lynette’s views, wishes, feelings and beliefs.

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Continuity of care and ordinary residence

7.29 The local authority which is carrying out the assessment, planning or review of the plan is responsible for considering whether an advocate is required. In the case of a person who is receiving care and support from one local authority and decides to move and live in another authority, the responsibility will move with the care and support assessment (see chapter 20). For a person whose care and support is being provided out of area (in a type of accommodation set out in the section on ordinary residence (see chapter 19) it will be the authority in which the person is ordinarily resident. Understanding of local communities may be an important consideration, so the advocacy/advocate should wherever possible be from the area where the person is resident at the time of the assessment, planning or review.

Consequences for local authorities

The local authority should have local policies to clarify the appointing of advocates:

• from advocacy services out of their area that they may not have a direct commissioning relationship with (as it currently is with Independent Mental Capacity Advocate (IMCA))
• for people placed out of area temporarily
• for people who move from one area to another following an assessment and care and support planning in which an advocate is involved (the same advocate should be involved wherever practicable)

Care and support reviews

7.30 The local authority must involve the person, their carer and any other individual that the person wants to be involved in any review of their care and support plan, and take all reasonable steps to agree any changes (see chapter 13).

7.31 Local authorities must consider whether an advocate is required to facilitate the person’s involvement in the review of a care and support plan and, if appropriate, appoint an advocate. This applies regardless of whether an advocate was involved at an earlier stage. Examples of when an advocate may be appointed at this stage despite not previously being involved include:

• the person’s ability to be involved in the process without an advocate has changed
• the circumstances have changed (for example, the person’s involvement was previously facilitated by a relative who is no longer able to perform that role)
• an advocate should have been involved at the care and support planning stage and was not
• the requirement to involve an advocate at the care and support planning stage did not exist at that time

Judgements made by the local authority

An appropriate individual to facilitate the person’s involvement

7.32 Local authorities must consider whether there is an appropriate individual (or individuals) who can facilitate a person’s involvement in the assessment, planning or review processes, and this includes 3 specific considerations.

7.33 First, it cannot be someone who is already providing the person with care or treatment in a professional capacity or on a paid basis (regardless of who employs or pays for them). That means it cannot be, for example, the person’s GP, nurse, key worker or care and support worker.

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Case study: Janice

Janice is 43 and cares for her mother Sheena who is 72 who has advanced Parkinson’s and increasing cognitive and communication difficulties. Janice cares for her mother in excess of 40 hours per week. Janice gave up work to care for her mother 5 years ago, and using her direct payment Sheena pays her daughter for 8 hours per week for care and support, including helping her with personal care, cooking meals and grocery shopping. Sheena preferred this to paying someone else – she prefers not to have strangers in the house and finds that others often do not understand her needs. As Janice is caring for her mother for many more hours than this, Janice has received a carers assessment and receives her own carers personal budget which she uses for breaks such as her weekly aerobics class which she finds helps her keep in touch with her friends, stay healthy, and deal with stress.

There is no-one else available to act as an appropriate individual to support Sheena in decision making. Both Sheena and Janice would be happy for Janice to take on this role. However, as Janice received a payment, she would not be regarded as an appropriate individual, though the guidance states that good practice should ensure Janice’s views are sought as Sheena has made clear that she wishes this to happen.

7.34 Second the person’s wish not to be supported by that individual should be respected. Where a person does not wish to be supported by a relative, for example, perhaps because they wish to be moving towards independence from their family, then the local authority cannot consider the relative appropriate. The person’s wish not to be supported by that individual should be respected and if the person has capacity, or is competent to consent, the person’s wishes must be followed. If the person has been judged to lack the capacity to make a decision, then the local authority must be satisfied that it is in a person’s best interests to be supported and represented by the individual.

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Case study

If the person already has an advocate, whose role so far has been to support the person on matters not under the Care Act, who is able and willing to facilitate their involvement in the assessment, planning and review processes then they may be an appropriate individual to support the person’s involvement and represent them. They would be acting as an appropriate person rather than an independent advocate under the Care Act. If, however, that advocate fulfils the requirements for an independent advocate under the Care Act then they can be appointed as such.

Additionally, if an advocate is required under the Mental Capacity Act, and the local authority is going to appoint the same person to be that advocate, then the instruction, appointment and qualification of the advocate must also meet the requirements of the Mental Capacity Act.

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7.35 Third, the appropriate individual is expected to support and represent the person and to facilitate their involvement in the processes. It is unlikely that some people will be able to fulfil this role easily, for instance a family member who lives at a distance and who only has occasional contact with the person, a spouse who also finds it difficult to understand the local authority processes, a friend who expresses strong opinions of her own prior to finding out those of the individual concerned, or a housebound parent. It is not sufficient to know the person well or to love them deeply; the role of the appropriate individual is to support the person’s active involvement with the local authority processes (see chapter 6).

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Case study: Jacinta

Jacinta is 26 and lives with her mother and father. She has 2 siblings aged 28 and 23 who have left the family home. Jacinta would also like to move to living more independently. Jacinta has moderate learning disabilities and finds it hard to retain information. Jacinta’s parents are very worried that she won’t be able to cope living in her own home and are against her doing so. In these circumstances Jacinta’s parents would not be ‘an appropriate person’ who could effectively represent and support her involvement.

Case study: Brian

Brian is 84 and has advancing dementia. He lives alone in the house he owns. Brian has very limited mobility, has frequent falls and has difficulty in remembering to take medication and to eat. He has periods when he is confused and weighing up the longer term advantages and disadvantages of this care and support options, but has been judged to retain ‘capacity’ Brian says he feels very lonely. Social services are already providing some domiciliary care for which Brian is charged. The local authority is reviewing Brian’s care plan. Brian’s daughter and son in law who have had little contact with Brian over the past few years and will inherit the house are adamant that he can cope at home and does not need to go into a care home. In these circumstances, in addition to a lack of recent contact, there could be a conflict of interests and Brian’s relatives would not be ‘an appropriate person’.

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7.36 It will clearly not be suitable for a person to be regarded as an appropriate individual where they are implicated in any enquiry of abuse or neglect or have been judged by a SAR to have failed to prevent an abuse or neglect.

7.37 Sometimes the local authority will not know at the point of first contact or at an early stage of the assessment whether there is someone appropriate to assist the person in engaging. They may need to appoint an advocate, and find later that there is an appropriate person in the person’s own network. The advocate can at that stage ‘hand over’ to the appropriate person. Alternatively, the local authority may agree with the individual, the appropriate person and the advocate that it would be beneficial for the advocate to continue their role, though this is not a specific requirement under the legislation. Equally, it is possible that the local authority will consider someone appropriate who may then turn out to have difficulties in supporting the person to engage and be involved in the process. The local authority must at that point arrange for an advocate.

7.38 There may also be some cases where the local authority considers that a person needs the support of both a family member and an advocate; perhaps because the family member can provide a lot of information but not enough support, or because while there is a close relationship, there may be a conflict of interest with the relative, for example in relation to inheritance of the home.

7.39 If the local authority decides that they are required to appoint an independent advocate as the person does not have friends or family who can facilitate their involvement, the local authority must still consult with those friends or family members when the person asks them to (see chapter 6 on assessment).

7.40 It is the local authority’s decision as to whether a family member or friend can act as an appropriate person to facilitate the individual’s involvement. It is the local authority’s responsibility to communicate this decision to the individual’s friends and family where this may have been in question and whenever appropriate. The overall aim should be for people who need advocacy to be identified and when relevant, receive consistent support as early as possible and throughout the assessment, the care and support planning and the review processes.

7.41 The local authority may be carrying out assessments of 2 people in the same household. If both people agree to have the same advocate, and if the local authority consider there is no conflict of interest between the individuals or either of the individuals and the advocate, then the same advocate may support and represent the 2 people. For example, if they both wish to be supported to live together in their own home, then it may make sense for one advocate to support both. But where for example one wishes for the other to be moved away, there may be a conflict of interest and 2 advocates will be needed. If any of the people involved – the people being assessed or taking part in care and support or support planning or the advocate – consider that it would be better to have different advocates, then separate advocates should be provided.

The exceptions: provision of an advocate even where they have family or others who can facilitate the person’s involvement.

7.42 In general, a person who has substantial difficulty in being involved in their assessment, plan and review, will only become eligible for an advocate where there is no one appropriate to support their involvement. The exceptions are:

• where the exercising of the assessment or planning function might result in placement in NHS-funded provision in either a hospital for a period exceeding 4 weeks or in a care home for a period of 8 weeks or more and the local authority believes that it would be in the best interests of the individual to arrange an advocate
• where there is a disagreement, relating to the individual, between the local authority and the appropriate person whose role it would be to facilitate the individual’s involvement, and the local authority and the appropriate person agree that the involvement of an independent advocate would be beneficial to the individual

Who can act as an advocate?

7.43 Advocates must have:

A suitable level of appropriate experience

This may, for example, be in non-instructed advocacy or in working with those groups of people who may have substantial difficulty in engaging with assessments and care and support planning

Appropriate training

This may, for example, initially be training in advocacy (non-instructed and instructed) or dementia, or working with people with learning disabilities. Once appointed, all independent advocates should be expected to work towards the National Qualification in Independent Advocacy (level 3) within a year of being appointed, and to achieve it in a reasonable amount of time

Competency in the task

This will require the advocacy organisation assuring itself that the advocates who work for it are all competent and have regular training and assessment

Integrity and good character

This might be assessed through: interview and selection processes; seeking and scrutinising references prior to employment and on-going DBS checks ^{[footnote 25]}

The ability to work independently of the local authority or body carrying out assessments, planning or

reviews on the local authority’s behalf

This would include the ability to make a judgement about what a person is communicating and what is in a person’s best interests, as opposed to in a local authority’s best interests, and to act accordingly to represent this

Arrangements for regular supervision

This will require that the person meets regularly and sufficiently frequently with a person with a good understanding of independent advocacy who is able to guide their practice and develop their competence

7.44 The third updated version on the Advocacy Quality Performance Mark (QPM) was published on 3 April 2014 by the National Development Team for Inclusion (NDTi). The QPM is a tool for providers of independent advocacy to show their commitment and ability to provide high quality advocacy services - essential for people to have their voices heard, to exercise choice and control and to live independently.

7.45 To prevent potential conflict of interest, the independent advocate must not be working for the local authority, or for an organisation that is commissioned to carry out assessments, care and support plans or reviews for the local authority unless the potential conflict of interests is adequately addressed within the organisation’s structure (for example a different group within a company or through an effective ‘firewall’, as in the banking industry). In certain circumstances, in addition to their role under the Care Act, an advocate may assist an individual to develop their own care or support plan if requested to by the individual, but they cannot be the person to authorise the support plan or to approve care and support plans or reviews on behalf of the authority. Nor can an advocate be appointed if they are providing care or treatment to the individual in a professional or a paid capacity.

The role of the independent advocate

7.46 It is intended that advocates will decide the best way of supporting and representing the person they are advocating for, always with regard to the wellbeing and interest (including their views, beliefs and wishes) of the person concerned. This may involve creative approaches, for example, supporting someone to show film to help explain their needs, wishes or preferences.

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Case study: Kate

Kate has profound and multiple learning disabilities. She doesn’t use formal communication such as words or signs. She communicates using body language and facial expressions. In her assessment, Kate’s independent advocate supports her to show some film of her visiting a local market, enjoying the colours and sounds around her. In this way, Kate is able to show the assessor some of the things that are important to her.

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7.47 In addition, where practicable, they are expected to meet the person in private. Where a person has capacity, the advocate should ask and obtain their written consent to look at their records and to talk to their carer, family, friends, care or support worker and others who can provide information about their needs and wishes, their beliefs and values. Where a person does not have capacity to decide whether an advocate should look at their relevant records or talk to their family and friends, then the advocate should consult the records and the family and others as appropriate, but consulting the family and others only where the advocate considers this is in the person’s best interests. The Care Act allows advocates to examine and take copies of relevant records in certain circumstances. This mirrors the powers of an Independent Mental Capacity Advocate.

7.48 Acting as an advocate for a person who has substantial difficulty in engaging with care and support or safeguarding processes is a responsible position. It includes:

• assisting a person to understand the assessment, care and support planning and review and safeguarding processes. This requires advocates to understand local authority policies, and other agencies roles, and processes, the available assessment tools, the planning options, and the options available at the review of a care or support plan are required and good practice in safeguarding enquiries and SARs. It may involve advocates spending considerable time with the individual, considering their communications needs, their wishes and feelings and their life story, and using all this to assist the person to be involved and where possible to make decisions
• assisting a person to communicate their views, wishes and feelings to the staff who are carrying out an assessment or developing a care or support plan or reviewing an existing plan or to communicate their views, wishes and feelings to the staff who are carrying out safeguarding enquiries or reviews
• assisting a person to understand how their needs can be met by the local authority or otherwise – understanding for example how a care and support and support plan can be personalised, how it can be tailored to meet specific needs, how it can be creative, inclusive, and how it can be used to promote a person’s rights to liberty and to family life
• assisting the person to make decisions about their care and support arrangements – assisting them to weigh up various care and support options and to choose the ones that best meet the person’s needs and wishes.
• assisting the person to understand their rights under the Care Act – for an assessment which considers their wishes and feelings and which considers the views of other people; their right to have their eligible needs met, and to have a care or support plan that reflects their needs and their preferences, and in relation to safeguarding, understanding their right to have their concerns about abuse taken seriously and responded to appropriately. Also assisting the person to understand their wider rights, including their rights to liberty and family life. A person’s rights are complemented by the local authority’s duties, for example to involve the person, to meet needs in a way that is least restrictive of a person’s rights
• assisting a person to challenge a decision or process made by the local authority; and where a person cannot challenge the decision even with assistance, then to challenge it on their behalf

7.49 In terms of safeguarding there are some particular important issues for advocates to address. These include assisting a person to:

• decide what outcomes/changes they want
• understand the behaviour of others that are abusive /neglectful
• understand which actions of their own may expose them to avoidable abuse or neglect
• understand what actions that they can take to safeguard themselves
• understand what advice and help they can expect from others, including the criminal justice system
• understand what parts of the process are completely or partially within their control
• explain what help they want to avoid reoccurrence and also recover from the experience

Representing

7.50 There will be times when an advocate will have concerns about how the local authority has acted or what decision has been made or what outcome is proposed. The advocate must write a report outlining their concerns for the local authority. The local authority should convene a meeting with the advocate to consider the concerns and provide a written response to the advocate following the meeting.

7.51 Where the individual does not have capacity, or is not otherwise able, to challenge a decision, the advocate must challenge any decision where they believe the decision is inconsistent with the local authority’s duty to promote the individual’s wellbeing.

7.52 Where a person has been assisted and supported and nevertheless remains unable to make their own representations or their own decisions, the independent advocate must use what information they have collected and found, and make the representations on behalf of the person. They must ‘advocate’ on their behalf, to put their case, to scrutinise the options, to question the plans if they do not appear to meet all eligible needs or do not meet them in a way that fits with the person’s wishes and feelings, or are not the least restrictive of the person’s life, and to challenge local authority decisions where necessary. The ultimate goal of this representation is to secure a person’s rights, promote the individual’s well-being and ensure that their wishes are taken fully into account.

The role of the local authority in supporting the advocate

7.53 The local authority is expected to recognise that an advocate’s duty is to support and represent a person who has substantial difficulty in engaging with the local authority processes. The local authority must take into account any representations made by an advocate. The local authority must provide a written response to a report from an advocate which outlines concerns about how the local authority has acted or what decision has been made or what outcome is proposed. The local authority should understand that the advocate’s role incorporates ‘challenge’ on behalf of the individual.

7.54 The local authority is responsible for ensuring that the relevant people who work for the authority are aware of the advocacy service and the authority’s duty to provide such services (see chapter 3 on information and advice). It may engage with advocates to support this awareness raising.

7.55 The local authority should consider including the identification and referral of those people likely to benefit from independent advocacy (during assessment, care and support planning, review and safeguarding) through the care and support services they may commission. In doing so, the local authority should engage with domiciliary and residential care and support workers and agencies.

7.56 The local authority should take reasonable steps to assist the advocate in carrying out their role. For example, they should let other agencies know that an advocate is supporting a person, facilitating access to the person and to the records ^{[footnote 26]}, they should propose a reasonable timetable for the assessment and the care and support plan (taking into consideration the needs of the person), and where the advocate wishes to consult family, friends or paid staff, the timetable should allow this. They should keep the advocate informed of any developments and of the outcome of the assessment and the care and support plan.

7.57 The local authority may make reasonable requests of the advocate for information or for meetings both in relation to particular individuals and in relation to the advocate’s work more generally, and the independent advocate should comply with these.

7.58 The local authority must meet its duties in relation to working with an Independent Mental Capacity Advocate (IMCA) provided under the Mental Capacity Act as well as those in relation to an advocate under the Care Act when the advocate is acting in both roles. These duties have been closely aligned so as to facilitate this.

Availability of advocacy services to people in the area

7.59 All local authorities must ensure that there is sufficient provision of independent advocacy to meet their obligations under the Care Act. There should be sufficient independent advocates available for all people who qualify, and it will be unlawful not to provide someone who qualifies with an advocate (see also chapter 4).

7.60 Advocacy should be seamless for people who qualify, so that they can benefit from the support of one advocate for their whole experience of care or safeguarding work. It rarely makes sense to have one advocate for assessment and another for care and support planning; the 2 are interrelated, and people who have substantial difficulty in engaging should not be expected to have to tell their story repeatedly to different advocates.

7.61 The Local Government and Public Involvement in Health Act 2007 (as amended by the Health and Social Care Act 2012), provides that local authorities are under a duty to work with their local CCGs, and other partners through the Health and Wellbeing Board to undertake Joint Strategic Needs Assessments for their areas and to develop Joint Health and wellbeing Strategies. Statutory Guidance, published in March 2013 makes clear that the Joint Strategic Needs Assessment and Joint Health and Wellbeing Strategies must be published, and have specific regard to: ‘what health and social care information the community needs, including how they access it and what support they may need to understand it’.

7.62 Local authorities should be aware of and build on the current availability of independent advocacy services in its local area.

7.63 Independent advocacy under the duty flowing from the Care Act is similar in many ways to independent advocacy under the Mental Capacity Act (MCA). Regulations have been designed to enable independent advocates to be able to carry out both roles. For both:

• the independent advocate’s role is to support and represent people
• the independent advocate’s role is primarily to work with people who do not have anyone appropriate to support and represent them
• the independent advocates require a similar skill set
• regulations about the appointment and training of advocates are similar
• local authorities are under a duty to consider representations made by both independent advocates
• independent advocates will need to be well known and accessible
• independent advocates may challenge local authority decisions
• people who qualify for an Independent Mental Capacity Advocate (an IMCA) in relation to the care planning and care review – as that planning may result in an eligible change of accommodation decision – will (in nearly all cases) also qualify for independent advocacy under the Care Act. The provisions of the Care Act are however wider and apply to care planning irrespective of whether it may result in a change of accommodation decision. People for whom there is a power to instruct an IMCA in relation to care review will (in nearly all cases) also qualify for independent advocacy under the Care Act. The Care Act however creates a duty rather than a power in relation to advocacy and care reviews

7.64 However, the duty to provide independent advocacy under the Care Act is broader and provides support to:

• people who have capacity but who have substantial difficulty in being involved in the care and support ‘processes’
• people in relation to their assessment and/or care and support planning regardless of whether a change of accommodation is being considered for the person
• people in relation to the review of a care and/or support plan
• people in relation to safeguarding processes (though IMCAs may be involved if the authority has exercised its discretionary power under the MCA and appointed an IMCA if protective measures are being proposed for a person who lacks capacity, at the time to make the relevant decisions or understand their consequences)
• carers who have substantial difficulty in engaging – whether or not they have capacity
• people for whom there is someone who is appropriate to consult for the purpose of best interests decisions under the Mental Capacity Act, but who is not able and/or willing to facilitate the person’s involvement in the local authority process
• adults who are subject to a safeguarding enquiry or SAR

7.65 Frequently a person will be entitled to an advocate under the Care Act and then, as the process continues it will be identified that there is a duty to provide an advocate (IMCA) under the Mental Capacity Act. This will occur for example when during the process of assessment or care and support planning it is identified that a decision needs to be taken about the person’s long-term accommodation. It would be unhelpful to the individual and to the local authority for a new advocate to be appointed at that stage. It would be better that the advocate who is appointed in the first instance is qualified to act under the Mental Capacity Act (as IMCAs) and the Care Act and that the commissioning arrangements enable this to occur.

7.66 Local authorities do not have to commission one organisation to provide all types of statutory and non-statutory advocacy. But there may be advantages of working with one organisation or working through one liaison point for a consortium of advocacy providers:

• it is better for the person receiving the support
• it is easier for those carrying out assessment and care planning to work with one advocate per individual rather than two
• it is easier for the local authority to manage and monitor one contract rather than 2

Charging and financial assessment

This section includes chapters:

8. Charging and financial assessment

This chapter provides guidance on:

• Sections 14, 17 and 69-70 of the Care Act 2014
• the Care and Support (Charging and Assessment of Resources) Regulations 2014
• the Care and Support and Aftercare (Choice of Accommodation) Regulations 2014

This chapter covers:

• common issues for charging
• charging for care and support in a care home
• choice of accommodation when arranging care in a residential setting
• making additional payments for preferred accommodation
• charging for home care and support in a person’s own home
• charging for support to carers
• requesting local authority support to meet eligible needs

This chapter must be read in conjunction with Annexes A to F, which provide further technical and detailed information.

8.1 The Care Act provides a single legal framework for charging for care and support under sections 14 and 17. It enables a local authority to decide whether or not to charge a person when it is arranging to meet a person’s care and support needs or a carer’s support needs.

8.2 Where a local authority arranges care and support to meet a person’s needs, it may charge the adult, except where the local authority is required to arrange care and support free of charge. The new framework is intended to make charging fairer and more clearly understood by everyone. The overarching principle is that people should only be required to pay what they can afford. People will be entitled to financial support based on a means-test and some will be entitled to free care. The framework is therefore based on the following principles that local authorities should take into account when making decisions on charging. The principles are that the approach to charging for care and support needs should:

• ensure that people are not charged more than it is reasonably practicable for them to pay
• be comprehensive, to reduce variation in the way people are assessed and charged
• be clear and transparent, so people know what they will be charged
• promote wellbeing, social inclusion, and support the vision of personalisation, independence, choice and control
• support carers to look after their own health and wellbeing and to care effectively and safely
• be person-focused, reflecting the variety of care and caring journeys and the variety of options available to meet their needs
• apply the charging rules equally so those with similar needs or services are treated the same and minimise anomalies between different care settings
• encourage and enable those who wish to stay in or take up employment, education or training or plan for the future costs of meeting their needs to do so
• be sustainable for local authorities in the long-term

8.3 Alongside this, local authorities should ensure there is sufficient information and advice available in a suitable format for the person’s needs, in line with the Equality Act 2010 (in particular for those with a sensory impairment, with learning disabilities or for whom English is not their first language), to ensure that they or their representative are able to understand any contributions they are asked to make. Local authorities should also make the person or their representative aware of the availability of independent financial information and advice.

Common issues for charging

8.4 Local authorities have a duty to arrange care and support for those with eligible needs, and a power to meet both eligible and non-eligible needs. In all cases, a local authority has the discretion to choose whether or not to charge under section 14 of the Care Act following a person’s needs assessment. Where it decides to charge, it must follow the Care and Support (Charging and Assessment of Resources) regulations and have regard to the guidance. The detail of how to charge is different depending on whether someone is receiving care in a care home, or their own home, or another setting. However, they share some common elements, which are set out in the following section.

8.5 The different approaches exist to reflect that the delivery model for care homes is relatively uniform across the country and it is therefore sensible to provide a single model for charging purposes. However, other models of care generally see a greater variety of approaches and innovation that we wish to continue.

8.6 Where a local authority chooses to charge, regulations determine the maximum amount a local authority can charge a person.

8.7 Only in care homes, where the financial assessment identifies that a person’s resources exceed the capital limits, is a local authority precluded from paying towards the costs of care. Therefore, local authorities should develop and maintain a policy setting out how they will charge people in settings other than care homes. In deciding what it is reasonable to charge, local authorities must ensure that they do not charge more than is permitted under the regulations and as set out in this guidance.

8.8 The subsequent guidance and the supporting annexes assume that the appropriate assessment of needs has been carried out and the local authority has chosen to charge. It therefore provides detail on how to conduct the financial assessment for that person. The local authority has no power to assess couples or civil partners according to their joint resources. Each person must therefore be treated individually. (For further guidance on assessment of needs see Chapter 6.)

8.9 Where a person lacks capacity, they may still be assessed as being able to contribute towards the cost of their care. However, a local authority must put in place policies regarding how they communicate, how they carry out financial assessments and how they collect any debts that take into consideration the capacity of the person as well as any illness or condition. Local authorities are expected to use their social work skills both to communicate with people and also to design a system that works with, and for, very vulnerable people. Sometimes it is useful to consult with and engage with family members; however, family members may not have the legal right to access the person’s bank accounts. Where possible, local authorities should work with someone who has the legal authority to make financial decisions on behalf of a person who lacks capacity. If there is no such person, then an approach to the Court of Protection is required.

8.10 The charging rules also apply equally to people in prison. Whilst prisoners have restricted access to paid employment and benefits (and earnings in prison are to be disregarded for the purposes of the financial assessments), any capital assets, savings and pensions will need specific consideration as set out in this chapter and relevant annexes. (For more information on prisons and approved premises see Chapter 17).

Capital limits

8.11 The financial limit, known as the ‘upper capital limit’, exists for the purposes of the financial assessment. This sets out at what point a person is entitled to access local authority support to meet their eligible needs. Full detail is set out in Annex B, and the local authority must read that guidance before undertaking a financial assessment.

8.12 The upper capital limit is currently set at £23,250. Below this level, a person can seek means-tested support from the local authority. This means that the local authority will undertake a financial assessment of the person’s assets and will make a charge based on what the person can afford to pay. In the financial assessment capital below the lower capital limit – currently set at £14,250 – is not taken into account in the assessment of what a person can pay in tariff income assessed against their capital. Where a person’s resources are below the lower capital limit of £14,250 they will not need to contribute to the cost of their care and support from their capital. However, for adults receiving care and support in locations other than in a care home the limits of £23,250 and £14,250 are simply minimums and local authorities have discretion to set their own higher capital limits if they wish, provided they are no lower than £23,250 for the upper limit and £14,250 for the lower limit.

8.13 A person with more in capital than the upper capital limit can ask their local authority to arrange their care and support for them. Where the person’s needs are to be met by care in a care home, the local authority may choose to meet those needs and arrange the care, but is not required to do so. In other cases, the authority must meet the eligible needs if requested. However, these people are not entitled to receive any financial assistance from their local authority and in any case, may pay the full cost of their care and support until their capital falls below the upper capital limit.

8.14 The local authority must not charge for certain types of care and support which must be arranged free.

These are:

• intermediate care, including reablement, which must be provided free of charge for up to 6 weeks. However, local authorities must have regard to the guidance on preventative support set out in Chapter 2. This sets out that neither should have a strict time limit but should reflect the needs of the person. Local authorities therefore may wish to apply their discretion to offer this free of charge for longer than 6 weeks where there are clear preventative benefits, such as when a person has recently become visually impaired
• community equipment (aids and minor adaptations). Aids must be provided free of charge whether provided to meet or prevent/delay needs. A minor adaptation is one costing £1,000 or less
• care and support provided to people with Creutzfeldt-Jacob Disease
• after-care services/support provided under section 117 of the Mental Health Act 1983
• any service or part of service which the NHS is under a duty to provide. This includes Continuing Healthcare and the NHS contribution to Registered Nursing Care
• more broadly, any services which a local authority is under a duty to provide through other legislation may not be charged for under the Care Act 2014
• assessment of needs and care planning may also not be charged for, since these processes do not constitute ‘meeting needs’

Carrying out a financial assessment

8.15 The legal framework for charging is set out in Sections 14 and 17 of the Care Act. When choosing to charge, a local authority must not charge more than the cost that it incurs in meeting the assessed needs of the person. It also cannot recover any administration fee relating to arranging that care and support. The only exception is in the case of a person with eligible needs and assets above the upper capital limit who has asked the local authority to arrange their care and support on their behalf. In such cases, the local authority may apply an administration fee to cover its costs. However, (see paragraphs 8.55 to 8.60 below) this must not be higher than the cost the local authority has incurred in arranging that care and support. This approach must also apply if the local authority has involved other organisations to deliver its duties in any way.

8.16 Where a local authority has decided to charge, except where a light touch assessment is permissible (see paragraph 8.22 below), it must carry out a financial assessment of what the person can afford to pay and, once complete, it must give a written record of that assessment to the person. This could be provided alongside a person’s care and support plan or separately, including via online means. It should explain how the assessment has been carried out, what the charge will be and how often it will be made, and if there is any fluctuation in charges, the reason. The local authority should ensure that this is provided in a manner that the person can easily understand, in line with its duties on providing information and advice.

8.17 In carrying out the assessment, the local authority must have regard to the detailed guidance set out in Annexes B and C that set out how both capital and income should be treated. A local authority must regularly reassess a person’s ability to meet the cost of any charges to take account of any changes to their resources. This is likely to be on an annual basis, but may vary according to individual circumstances. However, this should take place if there is a change in circumstance or at the request of the person.

8.18 At the time of the assessment of care and support needs, the local authority must establish whether the person has the capacity to take part in the assessment. If the person lacks capacity, the local authority must find out if the person has any of the following as the appropriate person will need to be involved:

• enduring power of attorney (EPA)
• lasting power of attorney (LPA) for property and affairs
• lasting power of attorney (LPA) for health and welfare
• property and affairs deputyship under the Court of Protection
• any other person dealing with that person’s affairs (for example, someone who has been given appointeeship by the Department for Work and Pensions (DWP) for the purpose of benefits payments)

8.19 People who lack capacity to give consent to a financial assessment and who do not have any of the above people with authority to be involved in their affairs, may require the appointment of a property and affairs deputyship. Family members can apply for this to the Court of Protection or the local authority can apply if there is no family involved in the care of the person. While this takes some weeks, it then enables the person appointed to access information about bank accounts and financial affairs. A person with dementia for example should not be ‘forced’ to undertake a financial assessment, to sign documents they can no longer understand and should not be punished for any incomplete information that is elicited from them. The local authority should be working with an EPA, a LPA or a deputy instead.

8.20 In the financial assessment, the person’s capital is taken into account unless it is subject to one of the disregards set out in Schedule 2 to the regulations and described in Annex B. The main examples of capital are property and savings. Where the person receiving care and support has capital at or below the upper capital limit (currently £23,250), but more than the lower capital limit (currently £14,250), they may be charged £1 per week for every £250 in capital between the 2 amounts. This is called ‘tariff income’. For example, if a person has £4,000 above the lower capital limit, they are charged a tariff income of £16 per week.

8.21 In assessing what a person can afford to pay, a local authority must take into account their income. However, to help encourage people to remain in or take up employment, with the benefits this has for a person’s well-being, earnings from current employment must be disregarded when working out how much they can pay. There are different approaches to how income is treated depending on whether a person is in a care home or receiving care and support in their own home. Full details are set out in Annex C on the treatment of income in care homes and other settings.

8.21a) As part of the Armed Forces Covenant, the government has committed to making sure veterans are not disadvantaged by their service and when appropriate receive special consideration. To support veterans injured on active service, payments to veterans under the War Pension Scheme, with the exception of Constant Attendance Allowance which is specifically intended to pay for care, must be disregarded in the assessment of what a veteran can pay for care from 10 April 2017. This brings payments to veterans under the War Pension Scheme into line with Guaranteed Income Payments under the Armed Forces Compensation Scheme which have been disregarded since October 2012.

‘Light-touch’ financial assessments

8.22 In some circumstances, a local authority may choose to treat a person as if a financial assessment had been carried out. In order to do so, the local authority must be satisfied on the basis of evidence provided by the person that they can afford, and will continue to be able to afford, any charges due. This is known as a ‘light-touch’ financial assessment.

8.23 The main circumstances in which a local authority may consider carrying out a light-touch financial assessment are:

1. a) Where a person has significant financial resources, and does not wish to undergo a full financial assessment for personal reasons, but wishes nonetheless to access local authority support in meeting their needs. In these situations the local authority may accept other evidence in lieu of carrying out the financial assessment and consider the person to have financial resources above the upper limit.
2. b) Where the local authority charges a small or nominal amount for a particular service (for example, for subsidised services) which a person is clearly able to meet and would clearly have the relevant minimum income left, and carrying out a financial assessment would be disproportionate.
3. c) When an individual is in receipt of benefits which demonstrate that they would not be able to contribute towards their care and support costs. This might include income from Jobseeker’s Allowance.

8.24 Ways a local authority may be satisfied that a person is able to afford any charges due might include evidence that a person has either:

1. a) property clearly worth more than the upper capital limit, where they are the sole owner or it is clear what their share is
2. b) savings clearly worth more than the upper capital limit
3. c) sufficient income left following the charge due

8.25 Where the local authority is going to meet the person’s needs, and it proposes to undertake a light-touch financial assessment, it should take steps to assure itself that the person concerned is willing, and will continue to be willing, to pay all charges due. It must also remember that it is responsible for ensuring that people are not charged more than it is reasonable for them to pay. Where a person does not agree to the charges that they have been assessed as being able to afford to pay under this route, a full financial assessment may be needed.

8.26 When deciding whether or not to undertake a light-touch financial assessment, a local authority should consider both the level of the charge it proposes to make, as well as the evidence or other certification the person is able to provide. They must also inform the person when a light-touch assessment has taken place and make clear that the person has the right to request a full financial assessment should they so wish, as well as making sure they have access to sufficient information and advice, including the option of independent financial information and advice.

Deprivation of assets and debts

8.27 People with care and support needs are free to spend their income and assets as they see fit, including making gifts to friends and family. This is important for promoting their wellbeing and enabling them to live fulfilling and independent lives. However, it is also important that people pay their fair contribution towards their care and support costs.

8.28 There are some cases where a person may have tried to deliberately avoid paying for care and support costs through depriving themselves of assets – either capital or income. Where a local authority believes they have evidence to support this, it must read Annex E concerning the deprivation of assets. In such cases, the local authority may either charge the person as if they still possessed the asset or, if the asset has been transferred to someone else, seek to recover the lost income from charges from that person. However, the local authority cannot recover more than the person gained from the transfer.

8.29 Where a person has accrued a debt, the local authority may use its powers under the Care Act to recover that debt. In deciding how to proceed, the local authority should consider the circumstances of the case before deciding a course of action. For example, a local authority should consider whether this was a deliberate avoidance of payment or due to circumstances beyond the person’s control.

8.30 Ultimately, the local authority may institute County Court proceedings to recover the debt. However, they should only use this power after other reasonable alternatives for recovering the debt have been exhausted. Further details on how to pursue debts are set out in Annex D.

Charging for care and support in a care home

8.31 This section must be read in conjunction with Annex B on the treatment of capital and Annex C on the treatment of income in care homes.

8.32 Where a local authority has decided to charge and undertaken the financial assessment, it should support the person to identify options of how best to pay any charge. This may include offering the person a deferred payment agreement. In such cases, chapter 9 of the guidance must be considered.

8.33 Where a local authority is meeting needs by arranging a care home, it is responsible for contracting with the provider. It is also responsible for paying the full amount, including where a ‘top-up’ fee is being paid. However, where all parties are agreed it may choose to allow the person to pay the provider directly for the ‘top-up’ where this is permitted. In doing so it should remember that multiple contracts risk confusion and that the local authority may be unable to assure itself that it is meeting its responsibilities under the additional cost provisions in the Care Act. Local authorities must ensure they read the guidance at Annex A on the use of ‘top-up’ fees.

8.34 Where a person is a short-term or temporary resident there is a degree of discretion or modified charging rules to take account of this.

• A short-term resident is someone provided with accommodation in a care home for a period not exceeding 8 weeks, for example where a person is placed in a care home to provide respite care. Where a person is a short-term resident a local authority may choose to assess and charge them based on the rules for care or support arranged other than in a care home.

• A temporary resident is someone whose stay in a care home is unlikely to exceed 52 weeks or, in exceptional circumstances, is unlikely to substantially exceed 52 weeks. Because a temporary resident is expected to return home their main or only home is usually disregarded in the assessment of whether and what they can afford to pay. In addition, for example, certain housing-related costs are also disregarded in the financial assessment.

8.35 People in a care home will contribute most of their income, excluding their earnings, towards the cost of their care and support. However, a local authority must leave the person with a specified amount of their own income so that the person has money to spend on personal items such as clothes and other items that are not part of their care. This is known as the personal expenses allowance (PEA). This is in addition to any income the person receives from earnings. Ministers have the power to adjust the PEA. Any changes are communicated by Local Authority Circular and are binding. Local authorities have discretion to apply a higher income allowance in individual cases, for example where the person needs to contribute towards the cost of maintaining their former home. Further detail is set out in Annex C.

Choice of accommodation

8.36 Where the care planning process has determined that a person’s needs are best met in a care home, the local authority must provide for the person’s preferred choice of accommodation, subject to certain conditions. This also extends to shared lives, supported living and extra care housing settings. Determining the appropriate type of accommodation should be made with the adult as part of the care and support planning process, therefore this choice only applies between providers of the same type.

8.37 The local authority must ensure that the person has a genuine choice of accommodation. It must ensure that at least one accommodation option is available and affordable within the person’s personal budget and it should ensure that there is more than one of those options. However, a person must also be able to choose alternative options, including a more expensive setting, where a third party or in certain circumstances the resident is willing and able to pay the additional cost (‘top-up’). However, an additional payment must always be optional and never as a result of commissioning failures leading to a lack of choice. Detailed guidance is set out in Annex A which a local authority must have regard to.

Charging for care and support in other care settings including a person’s own home

8.38 This section should be read in conjunction with the regulations and Annex B on the treatment of capital and Annex C on the treatment of income in non-residential care.

8.39 These charging arrangements cover any setting for meeting care and support needs outside of a care home. For example, care and support received in a person’s own home, and in other accommodation settings such as in extra care housing, supported living accommodation or shared lives arrangements.

8.40 The intent of the regulations and guidance is to support local authorities to assess what a person can afford to contribute towards their care costs. Local authorities should also consider how to use their discretion to support the principles of care and support charging.

8.41 This guidance does not make any presumption that local authorities will charge for care and support provided outside care homes, but enables them to continue to allow discretion.

8.42 Because a person who receives care and support outside a care home will need to pay their daily living costs such as rent, food and utilities, the charging rules must ensure they have enough money to meet these costs. After charging, a person must be left with the minimum income guarantee (MIG), as set out in the Care and Support (Charging and Assessment of Resources) Regulation 2014. In addition, where a person receives benefits to meet their disability needs that do not meet the eligibility criteria for local authority care and support, the charging arrangements should ensure that they keep enough money to cover the cost of meeting these disability-related costs.

8.43 Additionally, the financial assessment of their capital must exclude the value of the property which they occupy as their main or only home. Beyond this, the rules on what capital must be disregarded are the same for all types of care and support. However, local authorities have flexibility within this framework; for example, they may choose to disregard additional sources of income, set maximum charges, or charge a person a percentage of their disposable income. This will help support local authorities to take account of local circumstances and promote integration and innovation.

8.44 Although local authorities have this discretion, this should not lead to 2 people with similar needs, and receiving similar types of care and support, being charged differently.

8.45 Local authorities should develop and maintain a policy on how they wish to apply this discretion locally. In designing this policy local authorities should consider the objectives of care and support charging and how it can:

• ensure that people are not charged more than it is reasonably practicable for them to pay
• be comprehensive, to reduce variation in the way people are assessed and charged
• be clear and transparent, so people know what they will be charged
• promote wellbeing, social inclusion, and support the vision of personalisation, independence, choice and control
• support carers to look after their own health and wellbeing and to care effectively and safely
• be person-focused, reflecting the variety of care and caring journeys and the variety of options available to meet their needs
• apply the charging rules equally so those with similar needs or services are treated the same and minimise anomalies between different care settings
• encourage and enable those who wish to stay in or take up employment, education or training or plan for the future costs of meeting their needs to do so
• be sustainable for local authorities in the long-term
• administer a charging policy for people who lack capacity or are losing capacity in a way that considers what capacity remains and their rights

8.46 Local authorities should consult people with care and support needs when deciding how to exercise this discretion. In doing this, local authorities should consider how to protect a person’s income. The government considers that it is inconsistent with promoting independent living to assume, without further consideration, that all of a person’s income above the minimum income guarantee (MIG) is available to be taken in charges.

8.47 Local authorities should therefore consider whether it is appropriate to set a maximum percentage of disposable income (over and above the guaranteed minimum income) which may be taken into account in charges.

8.48 Local authorities should also consider whether it is appropriate to set a maximum charge, for example these might be set as a maximum percentage of care home charges in a local area. This could help ensure that people are encouraged to remain in in their own homes, promoting individual wellbeing and independence.

Charging for support to carers

8.49 Where a carer has eligible support needs of their own, the local authority has a duty, or in some cases a power, to arrange support to meet their needs. Where a local authority is meeting the needs of a carer by providing a service directly to a carer, for example a relaxation class or driving lessons, it has the power to charge the carer. However, a local authority must not charge a carer for care and support provided directly to the person they care for under any circumstances.

8.50 Local authorities are not required to charge a carer for support and indeed in many cases it would be a false economy to do so. When deciding whether to charge, and in determining what an appropriate charge is, a local authority should consider how it wishes to express the way it values carers within its local community as partners in care, and recognise the significant contribution carers make. Carers help to maintain the health and wellbeing of the person they care for, support this person’s independence and enable them to stay in their own homes for longer. In many cases of course, carers voluntarily meet eligible needs that the local authority would otherwise be required to meet. Local authorities should consider carefully the likely impact of any charges on carers, particularly in terms of their willingness and ability to continue their caring responsibilities. It may be that there are circumstances where a nominal charge may be appropriate, for example to provide for a service which is subsidised but for which the carer may still pay a small charge, such as a gym class. Ultimately, a local authority should ensure that any charges do not negatively impact on a carer’s ability to look after their own health and wellbeing and to care effectively and safely.

8.51 While charging carers may be appropriate in some circumstances, it is very unlikely to be efficient to systematically charge carers for meeting their eligible needs. This is because excessive charges are likely to lead to carers refusing support, which in turn will lead to carer breakdown and local authorities having to meet more eligible needs of people currently cared for voluntarily. As an example, work carried out by Surrey County Council found that if even 10% of people with care and support needs in families supported by carers presented to the council with eligible needs as a result of carer breakdown, the resulting cost would be 3 times the current total budget for carer support. The ADASS produced the Economic Case for Investment in Carers, a short factsheet for local authorities to use in considering whether to put in place a policy of charging carers, setting out the evidence that charging would be a false economy.

8.52 Local authorities may also wish to consider whether charging is proportionate when carers’ assessments are undertaken for small scale help. There is a risk that financial assessments might become the most costly part of the process and something that is administratively burdensome.

8.53 Where a local authority takes the decision to charge a carer, it must do so in accordance with the non-residential charging rules. In doing so, it should usually carry out a financial assessment to ensure that any charges are affordable. However, it may be more likely, in the case of a carer, that the carer and the local authority will agree that a full financial assessment would be disproportionate as carers often face significantly lower charges.

8.54 In such cases, a local authority may choose to treat a carer as if a financial assessment has been carried out. When deciding whether or not to undertake a light-touch financial assessment, a local authority should consider both the level of the charge it proposes to make as well as the evidence the person is able to provide that they will be able to afford the charge. They must also inform the person when a light-touch assessment has taken place and make clear from the outset that the person has the right to request a full financial assessment should they so wish.

8.55 A carer’s assessment may identify that the carer’s needs for support could be met by arranging time away from the person they care for, for instance so that they can stay on top of other aspects of their lives, and that in order to achieve this services need to be provided to support the cared-for person in their absence. Such services would be provided direct to the cared-for person, even though they may meet the needs of both parties and may have been identified through the carer’s assessment. The local authority may not charge the carer for these services, and any charges should be based on the local authority’s policy on charging for non-residential care and support.

Requesting local authority support to meet eligible needs

8.56 People with eligible needs and financial assets above the upper capital limit may ask the local authority to meet their needs. This could be for a variety of reasons such as the person finding the system too difficult to navigate, or wishing to take advantage of the local authority’s knowledge of the local market of care and support services. Where the person asks the local authority to meet their eligible needs, and it is anticipated that their needs will be met by a care home placement, then the local authority may choose to meet their needs, but is not required to do so. In other cases, where the needs are to be met by care and support of some other type, the local authority must meet those eligible needs.

8.57 Local authorities should therefore take steps to make people aware that they have the right to request the local authority to meet their needs, in certain circumstances even when they have resources above the financial limits and would not be entitled to financial support with any charges. They should also be clear that this right does not extend to needs met by a care home placement, although local authorities may choose to apply the same approach locally. Local authorities should also offer support to people in meeting their own needs, including providing information and advice on different options, and may offer to arrange contracts with providers.

8.58 Where the person’s resources are above the financial limit, the person’s entitlement to local authority support in meeting their needs may be dependent on the request having been made. Therefore it is important that the person, and any carer, advocate or other person they wish to involve, are aware of this ability and the consequences for their care and support. The local authority must make clear to the person that they may be liable to pay an arrangement fee in addition to the costs of meeting their needs to cover the costs of putting in place the care and support required.

8.59 Arrangement fees charged by local authorities must cover only the costs that the local authorities actually incur in arranging care. Arrangement fees should take account of the cost of negotiating and/or managing the contract with a provider and cover any administration costs incurred. Where a local authority chooses to meet the needs of a person with resources above the financial limit who requires a care home placement, it must not charge an arrangement fee. This is because it would support that person under its power (rather than its duty) to meet needs, and the ability to charge the arrangement fee applies only to circumstances when the authority is required to meet needs.

8.60 Local authorities must not charge people for a financial assessment, a needs assessment or the preparation of a care and support plan.

8.61 It may be appropriate for local authorities to charge a flat rate fee for arranging care. This can help ensure people have clarity about the costs they will face if they ask the local authority to arrange their care. However, such flat rate costs must be set at a level where they do not exceed the costs the local authority actually incurs.

8.62 The information provided to the person following a financial assessment should include information on the right to request the local authority to meet their needs – and how they would be charged – and the advice and support that is available to help people make arrangements to meet their own needs whatever type of support they require.

8.63 A local authority will be under a duty to meet a person’s eligible needs when requested to do so and their needs are to be met by care and support other than in a care home. However, where the person has resources above the financial limits the local authority may charge the person for the full cost of their care and support. In such circumstances, the person remains responsible for paying for the cost of their care and support, but the local authority takes on the responsibility for meeting those needs. This means that the local authority may for example provide or arrange care and support, or make a direct payment which may be a paper based exercise, or some combination of these. Further information on how, to ‘meet needs’ and the options available is provided in chapter 10.

8.64 The local authority must assure itself that whilst the person remains responsible for paying for their own care, they have sufficient assets for the arrangements that it puts in place to remain both affordable and sustainable. The local authority should also take steps to avoid disputes and additional liabilities by securing a person’s agreement in writing to pay the costs that they are responsible for in meeting their needs, including payments to providers. Local authorities should make similar arrangements with any third parties that agree to contribute towards these costs.

Pension reforms

8.65 Reforms to defined contribution pensions came into effect from April 2015. The aim of the reforms is to provide people with much greater flexibility in how they fund later life. The government expects there to be a range of new products that people will use to manage and access money from their pensions as and when they need it, and where possible, these should be treated similarly to existing drawdown products for charging purposes.

8.66 The Pension wise service helps people to make informed choices at the point of retirement. This will include information and advice on later life, including the risk that they may need care and support in the future, and will have to pay for it.

8.67 For the purposes of charging, a local authority must follow the guidance set out on the treatment of income and capital in Annexes B and C and treat a person’s assets accordingly. Where a person has chosen to withdraw funds from their pension pot and manage it directly, for example combining it with other assets rather than through a pensions product, this may be treated as capital under the rules laid out in Annex B.

Complaints

8.68 A person may wish to make a complaint about any aspect of the financial assessment or how a local authority has chosen to charge. A local authority must make clear what its complaints procedure is and provide information and advice on how to lodge a complaint.

8.69 Complaints about the level of charge levied by a local authority are subject to the usual care and support complaints procedure as set out in The Local Authority Social Services and NHS Complaints (England) Regulations 2009.

8.70 Where a local authority has established a special panel or fast track review processes to deal with financial assessment/charging issues, they should remind the person that they still have access to the statutory complaints procedure.

9. Deferred payment agreements

This chapter provides guidance on:

• sections 34-36 of the Care Act 2014
• the Care and Support (Deferred Payment) Regulations 2014 (as amended by the Care and Support (Deferred Payment)(Amendment) Regulations 2017) [see note 1]

This chapter covers:

• who to offer a deferred payment to
• provision of information and advice before making a deferred payment agreement
• how much can be deferred, and security for the agreement
• interest rate for the deferral and administrative charges
• making the agreement, responsibilities while the agreement is in place and termination of the agreement

Note 1

The legislation that underpinned deferred payment agreements (DPAs) did not work as intended. It meant that local authorities (LAs) in England were not required to offer DPAs to eligible individuals unless they were meeting that individual’s needs or believed they would meet their needs if asked. We therefore made amendments to the Care and Support (Deferred Payment) Regulations 2014 so that LAs are now required to enter into a ‘loan-type’ DPA with individuals who qualify for one but whose needs the LA is not meeting. This chapter was amended on 12 February 2018 to reflect these changes in the law and to provide greater clarity on the types of DPAs that can be offered (see paragraphs 9.3, 9.7 and 9.10 to 9.13).

Definitions

9.1 ‘Care costs’ – all costs charged to a person by a care provider, including any top-ups and core care costs. This includes the costs associated with the provision of supported accommodation.

9.2 ‘Top ups’ – this term has the usual meaning accorded to it within the care and support sector, but for the avoidance of doubt, top ups are costs due to a local authority under Section 30 of the Care Act or costs for the provision of the type of care referred to in Section 34(3)(a) of the Care Act.

Introduction

9.3 The establishment of the universal deferred payment scheme means that people should not be forced to sell their home in their lifetime to pay for their care. By entering into a deferred payment agreement, a local authority agrees to:

• defer the payment of charges due to it from the adult, for the costs of meeting needs in a care home or supported living accommodation

or

• defer the repayment of a loan to the adult in instalments, to cover the costs of care and support in a care home or supported living accommodation

Deferring payment can help people to delay the need to sell their home, and provides peace of mind during a time that can be challenging (or even a crisis point) for them and their loved ones as they make the transition into care.

9.4 A deferred payment agreement can provide additional flexibility for when and how someone pays for their care and support. It should be stressed from the outset that the payment for care and support is deferred and not ‘written off’. The costs of provision of care and support will have to be repaid by the individual (or a third party on their behalf) at a later date.

9.5 The scheme is universally available throughout England, and local authorities are required to offer deferred payment agreements to people who meet certain criteria governing eligibility set out in paragraph 9.7 below (the qualifying criteria) for the scheme. Local authorities need to ensure that adequate security is in place for the amount being deferred, so that they can be confident that the amount deferred will be repaid in the future. Local authorities are also encouraged to offer the scheme more widely to anyone they feel would benefit who does not fully meet the criteria.

9.6 A deferral can last until death. However, many people choose to use a deferred payment agreement as a ‘bridging loan’ to give them time and flexibility to sell their home when they choose to do so. This is entirely up to the individual to decide. Further details on deferred payment agreements are set out in the sections below.

Who to offer deferred payment agreements to

Qualifying criteria for deferred payment agreements

9.7 Deferred payment agreements are designed to prevent people from being forced to sell their home in their lifetime to meet the cost of their care. Local authorities must offer them to people who meet the criteria below and who are able to provide adequate security (see section entitled ‘Obtaining Security’ below). Subject to these criteria they must offer them to people who have their needs met by the local authority, and also people who meet their own needs. The regulations provide that someone must be offered a deferred payment agreement if they meet all of the following criteria at the point of applying for a deferred payment agreement. Broadly, they are that the:

1. a) person is ordinarily resident in the local authority area or present in the area but of no settled residence; or ordinarily resident in another local authority area but the local authority has determined that they will or would meet the individual’s care needs under section 19 of the Care Act if asked to do so [see note 2]
2. b) person has needs which are to be met by the provision of care in a care home. This is determined when someone is assessed as having care and support needs [see note 3] which the local authority considers should be met through a care home placement
3. c) person has less than (or equal to) £23,250 in assets excluding the value of their main or only home (for example, in savings, other non-housing assets and housing assets other than their main or only home)
4. d) person’s home is not disregarded [see note 4]; for example, it is not occupied by a spouse or dependent relative as defined in regulations on charging for care and support (for example, someone whose home is taken into account in the local authority financial assessment and so might need to be sold)

Note 2

Where a local authority is meeting an individual’s care and support needs under section 19(2) of the Care Act.

Note 3

When someone is arranging their own care and support and the authority has not performed an assessment, this condition is satisfied when someone would be assessed as having eligible needs were the authority to have carried out such an assessment.

Note 4

Disregarded for the purposes of the financial assessment carried out under section 17 of the Act.

9.8 As well as providing protection for people facing the prospect of having to sell their home to pay for care, deferred payment agreements can offer valuable flexibility, giving people greater choice over how they pay their care costs. Local authorities are, at their discretion, permitted to be more generous than these criteria and offer deferred payment agreements to people who do not meet criteria b, c or d in section 9.7. In deciding whether someone who does not meet all of the criteria above should still be offered a deferred payment, some considerations a local authority may wish to take into account include (but are not limited to):

1. a) whether meeting care costs would leave someone with very few accessible assets (this might include assets which cannot quickly or easily be liquidated or converted to cash)
2. b) if someone would like to use wealth tied up in their home to fund more than just their core care costs and purchase affordable top-ups (see further guidance on ‘How much can be deferred’, paragraph 9.36)
3. c) whether someone has any other accessible means to help them meet the cost of their care and support
4. d) if a person is narrowly not entitled to a deferred payment agreement given the criteria above, for example because they have slightly more than the £23,250 asset threshold. This should include people who are likely to meet the criteria in the near future

9.9 Local authorities may also at their discretion enter into deferred payment agreements with people whose care and support is provided in supported living accommodation. The local authority should not exercise this discretion unless the person intends to retain their former home and pay the associated care and accommodation rental costs from their deferred payment. Further details on precisely what qualifies as supported living accommodation are set out in regulations. Deferred payment agreements cannot be entered into to finance mortgage payments on supported living accommodation.

Types of deferred payment agreement

9.10 Deferred payment agreements can take 2 forms:

• the local authority pays the care home or supported living accommodation directly and defers the charges due to it from the individual (traditional type)
• the individual pays the care provider for their care and the local authority loans them the cost of care in instalments less any contributions the individual contributes from other sources (loan type)

9.11 When considering their approach as to when or whether to offer loan or traditional type deferred payment agreements, local authorities should have regard to their duties under the Care Act, including their duties under the well-being principle and their market duties. Local authorities cannot refuse to enter into a loan-type deferred payment agreement if the qualifying criteria are met and the individual requests it (subject to paragraphs 9.14 to 9.17 below).

9.12 The local authority must comply with all relevant legislation and act under the guidance.

9.13 In all cases, a local authority is only required to enter into a deferred payment agreement to cover the costs of care and support which it considers necessary.

Permission to refuse a deferred payment agreement

9.14 A local authority must offer a deferred payment to someone meeting the qualifying criteria for deferred payment agreements and who is able to provide adequate security for the debt (obtaining a first land registry charge on their property, see ‘Obtaining security’ at paragraph 9.58); and may offer a deferred payment agreement to others who do not meet the criteria, at their discretion.

9.15 There are, however, certain circumstances in which a local authority may refuse a request for a deferred payment agreement (‘permission to refuse’), even if a person meets the qualifying criteria and the local authority would otherwise be required to offer the person an agreement. This permission (or discretion) to refuse is intended to provide local authorities with a reasonable safeguard against default or non-repayment of debt.

9.16 A local authority may refuse a deferred payment agreement despite someone meeting the qualifying criteria:

1. a) where a local authority is unable to secure a first charge on the person’s property
2. b) where someone is seeking a top up [see note 5]
3. c) where a person does not agree to the terms and conditions of the agreement, for example a requirement to insure and maintain the property

Note 5

In these situations, a local authority should still seek to offer a deferred payment agreement but should be guided by principles in the section ‘How much to defer’, to determine a maximum amount that is sustainable (or reflects their core care costs without any top-ups) and agree a deferral. The person can then choose whether they wish to agree

9.17 In any of the above circumstances, a local authority should consider whether to exercise its discretion to offer a deferred payment anyway (for example, if a person’s property is uninsurable but has a high land value, the local authority may choose to accept charges against this land as security instead).

Circumstances in which local authorities may stop deferring care costs or making payments under a loan-type agreement

9.18 There are also circumstances where a local authority may refuse to defer or loan any more charges for a person who has an active deferred payment agreement. Local authorities cannot demand repayment in these circumstances, and repayment is still subject to the usual terms of termination, as set out in the section entitled ‘termination of the agreement’ below.

9.19 The local authority should provide a minimum of 30 days’ advance notice that further deferrals or loans will cease; and should provide the person with an indication of how their care costs will need to be met in future. Depending on their circumstances, the person may either receive local authority support in meeting the costs of their care, or may be required to meet their costs from their income and assets. Local authorities exercising these powers to cease deferring additional amounts should consider their decision to do so whilst considering the person’s circumstances and their overarching duties under the well-being principle.

9.20 Circumstances in which a local authority may refuse to defer or loan any more charges include^{[footnote 25]}:

1. a) when a person’s total assets fall below the level of the means-test (see chapter 8), and the person becomes eligible for local authority support in paying for their care
2. b) where a person no longer has need for care in a care home (or where appropriate supported living accommodation)
3. c) if a person breaches certain predefined terms of their contract (which must be clearly set out in the contract) and the local authority’s attempts to resolve the breach are unsuccessful and the contract has specified that the authority will stop making further payments in such a case
4. d) if, under the charging regulations (see also chapter 8), the property becomes disregarded for any reason and the person consequently qualifies for local authority support in paying for their care, including but not limited to:
   1. (i) where a spouse or dependent relative (as defined in charging regulations) has moved into the property after the agreement has been made, where this means the person is eligible for local authority support in paying for care and no longer requires a deferred payment agreement
   2. (ii) where a relative who was living in the property at the time of the agreement subsequently becomes a dependent relative (as defined in charging regulations). The local authority may cease further deferrals at this point

9.21 Local authorities should not exercise these discretionary powers if a person would, as a result, be unable to pay any tariff income due to the local authority from their non-housing assets.

9.22 Local authorities must also cease deferring or loaning further amounts when a person has reached the ‘equity limit’ that they are allowed to defer (see ‘how much can be deferred’ below); or when a person is no longer receiving care and support in either a care home setting or in supported living accommodation. This also applies when the value of the security has dropped and so the equity limit has been reached earlier than expected. ^{[footnote 26]}

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Case study 1

Lucille develops a need for a care home placement. She lives alone and is the sole owner of her home. Her home is valued at £165,000, and she has £15,000 in savings. Lucille meets the qualifying criteria for a deferred payment.

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Information and advice

9.23 Under the Care Act, local authorities have responsibilities to provide information and advice about people’s care and support. These extend to deferred payment schemes as well. This chapter should be read in combination with chapter 3 (‘Information and Advice’).

9.24 In order to be able to make well-informed choices, it is essential that people access appropriate information and advice before taking out a deferred payment agreement (DPA). It is also important that people are kept informed about their DPA throughout the course of the agreement, and that they (and the executor of their estate where appropriate) receive the necessary information upon termination of the agreement.

9.25 Information and advice requirements prior to taking out a DPA are discussed in this section; requirements on local authorities while the DPA is in place are discussed in a separate section below (see ‘the local authority’s responsibilities whilst the agreement is in place’); and the section entitled ‘termination of the agreement’ addresses the responsibilities on the local authority when the agreement is concluded. The requirements on local authorities to offer and facilitate access to financial information and advice on other options for paying for care are discussed in chapter 3.

9.26 Deferred payment agreements are often made during a time that is demanding for a person and their loved ones – a period when they are making a transition into a care home. People may need additional support during this period, and the local authority has a role in providing this support and facilitating their transition, particularly if their transition to care is made rapidly and/or at an unexpected point. The local authority must provide information in a way which is clear and easy to understand, and it should be designed to ease the process of transition for people, their carers and their families.

9.27 Carers and families often assist people in making decisions about their care and how they pay for it. Local authorities should as appropriate invite carers and/or families to participate in discussions, and should also provide them with all the information that would otherwise be given to the person they care for, subject (where required)^{[footnote 29]} to the consent of the person with care and support needs (if they have capacity) or someone else with appropriate authorisation. In doing this, they must ensure compliance with mental capacity and data protection legislation, and the other duties pertaining to information and advice set out in chapter 3 of this guidance.

9.28 As a deferred payment agreement can take some time to set up and agree, it is important that both the local authority and the individual consider any potential issues around mental capacity. Where a person may lack capacity to request a deferred payment, a deputy or attorney (a person with a relevant enduring power of attorney or lasting power of attorney) may request a deferred payment on their behalf. If a family member requests a deferred payment and they do not have the legal power to act on behalf of the person, then the person and the family member should receive information and advice on how to obtain this, through lasting power of attorney and deputyships. Where the local authority is the deputy for a person, then the local authority deputy may apply for deferred payments where this is in the best interests of the person. Local authorities must not enter into deferred payment agreements with a person lacking the requisite mental capacity unless the proper arrangements are in place.

9.29 Local authorities and the person applying for a deferred payment (who has capacity) may also want to consider any potential issues around loss of capacity. The local authority should where appropriate provide the person with information and advice on options for deputyship, legal power of attorney and advocacy. If a local authority and the person do discuss the issue, the local authority should confirm what would happen were the person to lose capacity and not have made their own arrangements. Further advice on capacity and financial arrangements is contained in the guidance on debt recovery in Annex D (a deferred payment being effectively a consensually-accruing debt to the local authority).

9.30 If a local authority identifies someone who may benefit from or be eligible for a DPA or a person approaches them for information, the local authority must tell them about the DPA scheme and how it works. This explanation should, at a minimum:

• set out clearly that the fees are being deferred or delayed and must still be paid back at a later date, for example through the sale of the home (potentially after the individual’s death)
• explain the types of security that a local authority is prepared to accept (as set out by each local authority in a publicly – available policy; see the section entitled ‘Obtaining Security’ below for further details)
• explain that if a home is used as security, the home may need to be sold at a later date to repay the amount due
• explain that the total amount they can defer will be governed by an equity limit (discussed in the section entitled ‘How much can be deferred’ below) which may change if the value of their security changes
• explain the circumstances where the local authority may cease to defer further amounts (such as when the person qualifies for local authority support in paying for their care), and the circumstances where the local authority has to stop deferring further amounts (such as when the person reaches their equity limit)
• explain if and how interest will be charged on any amount deferred
• explain that they may be liable to pay administrative charges
• explain what happens on termination of the agreement, how the loan becomes due and their options for repayment
• explain what happens if they do not repay the amount due
• set out the qualifying criteria for a DPA
• detail the requirements that must be adhered to during the course of the DPA
• explain the implications that a deferred payment agreement may have on their income, their benefit entitlements, and charging
• provide an overview of some potential advantages and disadvantages of taking out a DPA, and explain that there are other options for paying for their care that they may wish to consider
• note the existence of the 12-week disregard, which will afford those who qualify for it some additional time to consider their options in paying for care
• suggest that people may want to consider taking independent financial advice (including flagging the existence of regulated financial advice), in line with the guidance set out in chapter 3

9.31 Local authorities should provide easy to read information about how the scheme works. This may be in the form of a standardised information sheet.

9.32 Local authorities must provide this information and advice in formats that ensure compliance with the requirements of the Equality Act 2010 (in particular, they must ensure where appropriate that the information is accessible to the sensory impaired, people with learning disabilities, and people for whom English is not their first language). Further clarifications on information and advice requirements are detailed in chapter 3.

9.33 Where relevant, local authorities should provide information and advice on DPAs at the earliest appropriate opportunity during the period of the 12-week disregard^{[footnote 28]}. Local authorities should aim to ensure that people are able to make a smooth transition from the 12-week disregard to the DPA if they opt to enter into an agreement. This means ensuring as far as possible that a DPA is available by the first day of week 13.

9.34 Local authorities should advise people (where appropriate) that they will need to consider how they plan to use, maintain and insure their property if they take out a DPA; that is whether they wish to rent, to prepare for sale, or to leave it vacant for a period. The local authority should advise if it intends to place conditions on how the property is maintained whilst the DPA is in place (authorities will usually include requirements for people to maintain and insure their homes in the terms and conditions of a deferred payment agreement; see the section entitled ‘Making the Agreement’ for further details).

9.35 Local authorities should develop basic information and advice for homeowners on how they may choose to use their property when they enter care, for example information on how they may go about renting their property, and the potential impact on other people living in the property if a sale is required after their death. They should signpost people to more specialist organisations who can provide further advice on this issue, including information about their legal responsibilities as landlords and their obligations to any potential tenants.

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Case study 2

Lucille’s son Buster has been providing informal care and support to her, and has heard of the deferred payments scheme. When Lucille decides she may benefit from a care home placement, her son suggests they approach her local authority together for information and advice about deferred payment agreements.

Her local authority provides them both with a printed information sheet setting out further details on the authority’s deferred payment scheme, and also provides them with contact details of some national and local services who provide financial information and advice

Lucille is interested in renting her property whilst residing in a care home. The local authority has an existing housing advice service, so signposts Lucille to them for further advice on lettings. The local authority’s standard information sheet also includes information on how her rental income may be used to pay for her care and support.

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How much can be deferred?

9.36 In principle, a person should be able to defer the entirety of their care costs; subject to any contribution the local authority is allowed to require from the person’s income. The local authority will need to consider whether a person can provide adequate security for the deferred payment agreement (see next section entitled ‘Obtaining Security’ – usually this requirement for ‘adequate security’ will be fulfilled by securing their deferred payment agreement against their property).

9.37 If the person is considering a top-up, the local authority should also consider whether the amount or size of the deferral requested is sustainable given the equity available from their chosen form of security. A discussion of sustainability may be helpful in all cases to ensure the person is aware of how much care their chosen form of security would afford them.

9.38 Three elements will dictate how much a person will defer, each of which is discussed below:

1. a) The amount of equity a person has available in their chosen form of security (usually their property)
2. b) The amount a person is contributing to their care costs from other sources, including income and (where they choose to) any contribution from savings, a financial product or a third-party
3. c) The total care costs a person will face, including any top-ups the person might be seeking

9.39 Local authorities should also satisfy themselves that any top-up they agree to is sufficiently sustainable. Some guidance for local authorities in assessing whether a top-up is sustainable is provided below.

Equity Limit

9.40 When considering the equity available, local authorities must be guided by an ‘equity limit’ for the total amount that can be deferred and ensure that the amount deferred does not rise above this limit. The equity limit will leave some equity remaining in the security used for the DPA – this will both act as a buffer to cover any subsequent interest which continues to accrue, and will provide a small ‘cushion’ in case of small variations in value of the security. In the majority of cases a property will be used as security, so the equity limit will provide a cushion against changes in house prices. When calculating progress towards the equity limit, the local authority must also include any interest and/or fees to be deferred.

9.41 If the person intends to secure their deferred payment agreement with a property, local authorities must obtain a valuation of the property. Reasonable property valuation costs are included in the list of administration charges that local authorities can pass on to people, should they wish to do so. People may request an independent assessment of the property’s value (in addition to the local authority’s valuation). If an independent assessment finds a substantially differing value to the local authority’s valuation, the local authority and person should discuss and agree an appropriate valuation prior to proceeding with the agreement.

9.42 Where a property is used as security to offer a deferred payment agreement, the equity limit must be set at the value of the property minus 10%, minus £14,250 (for financial year 2015 to 2016, this is in line with the lower capital limit) and the amount of encumbrance secured on it. This limit provides some protection to local authorities against changes in the value of the security (such as possible house price fluctuations) and the risk that they may not be able to recoup the full amount owed, but also should mean that people qualify for local authority support if they deplete the equity available in their property (and are consequently not at risk of having to sell their home to pay for care).^{[footnote 29]}

9.43 Local authorities should, when someone is approaching or reaches the point at which they have deferred 70% of the value of their chosen security, review the cost of their care with the person, discuss when the person might be eligible for any means tested support, discuss the implications for any top-up they might currently have, and consider jointly whether a deferred payment agreement continues to be the best way for someone to meet these costs.

9.44 The following example illustrates the equity limit principle.

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Case study 3: The equity limit

Lucille decides to secure her deferred payment agreement with her house, which is worth £165,000. The amount of equity available will be the value of the property minus 10%, minus a further £14,250 (the lower capital limit).

£165,000 – £16,500 – £14,250 = £134,250

Therefore, her ‘equity limit’ for the total amount she could defer would consequently be £134,250, which would leave £30,750 in equity in her home.

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9.45 Local authorities must not allow additional amounts to be deferred beyond the equity limit, and must refuse to defer care costs beyond this (see section above entitled ‘permission to refuse’). However, interest can still accrue beyond this point, and administrative charges can still be deferred.

Contributing to care costs from other sources

9.46 A person may meet the costs of their care and support from a combination of any of 4 primary sources:

• income, including pension income (see chapter 8 for definition of income)
• savings or other assets they might have access to, this might include any contributions from a third party
• a financial product designed to pay for long-term care
• a deferred payment agreement which enables them to pay for their care at a later date out of assets (usually their home)

9.47 The share of care costs that someone defers will depend on the amount they will be paying from the other sources listed above.

9.48 Local authorities may require a contribution towards care costs from a person’s income, but the person has a right to retain a proportion of their income (the ‘disposable income allowance’). The disposable income allowance is a fixed amount (up to £144 per week) of a person’s income which the local authority must allow the person to retain (if the person wants to retain it). The local authority can require the person to contribute the rest of their income, but must allow the person to retain as much of their disposable income allowance as they want to.

9.49 A person may choose to keep less of their income than the disposable income allowance. This might be advantageous to the person as they would be contributing more to the costs of their care from their income, and consequently reducing the amount they are deferring (and accruing less debt to their local authority overall). However this must be entirely at the individual’s decision and the local authority must not compel someone to retain less than the disposable income allowance if the person wants to retain the full amount.

9.50 If a person decides to rent out their property during the course of their DPA, a local authority should permit that person to retain a percentage of any rental income they possess. Local authorities may want to consider whether to offer other incentives to individuals to encourage rental of properties, though the decision as to whether or not to rent a property must be the person’s and theirs alone.

9.51 A person may also contribute to their care costs from payments by a third party (including any contributions available from a financial product) or from their savings. Contributing to care costs from another source would be beneficial for a person as it would reduce the amount they are deferring (and hence reduce their overall debt to the local authority). A local authority must not compel a person to contribute to their deferral from these sources.

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Case study 4

Lucille identifies a care home placement that meets her care and support needs, costing £540 per week. She has an income provided by her pension of £230 per week. Lucille decides not to rent her home as she intends to sell it within the year.

Based on this provisional estimate of her care costs, Lucille would contribute £86 (230 –144) per week from her income, and her weekly deferral would be £454.

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Care costs

9.52 Before considering in detail how much they will be deferring, a person and usually the local authority should have a rough idea of their likely care costs as a result of the care planning process. Someone may wish to vary their care package (or any top-ups they may be considering) following consideration of what they could afford with a deferred payment agreement, but should approach the process with an approximate idea of what their care costs are likely to be.

9.53 In principle, people should be able to defer their full care costs including any top-ups.^{[footnote 32]} At a minimum, when local authorities are required to offer a deferred payment agreement they must allow someone to defer their ‘core’ care costs. To ensure sustainability of the deferral, local authorities have discretion over the amount people are permitted to top-up.^{[footnote 33]} Local authorities should consider any request for top-ups, but retain discretion over whether or not to agree to a given top-up. Local authorities should accept any top-up deemed to be reasonable given considerations of affordability, sustainability and available equity. Local authorities should be mindful of the duties set out in relation to top-ups and additional costs in the care and support and aftercare (Choice of Accommodation) regulations 2014.

Sustainability

9.54 When deciding on the amount to be deferred in a discretionary deferred payment agreement (particularly when considering top-ups), both parties should consider a range of factors to satisfy themselves that the arrangement is sustainable including:

• the likely period the person would want a DPA for (if they intend to use it as a ‘bridging loan’);
• the equity available
• the sustainability of a person’s contributions from their savings (if they are making one)
• the flexibility to meet future care needs
• the period of time a person would be able to defer their care costs for

9.55 Deferred payment agreements should prevent people from having to sell their home in their lifetime to pay for their care. Local authorities should discuss with the person the projected limit of what their equity could cover, given their projected care costs, and how their care costs might change over time. This may include a discussion of when they are likely to reach any of the income thresholds and may begin to qualify for local authority support in paying for their care. If the person is requesting a top-up, it is important that the local authority discusses what might happen to any top-up requested if the person reaches the equity limit and moves on to local authority support in paying for their care, and ensures that a written agreement is in place (see Annex A: Choice of accommodation and additional payments). In particular, the local authority should make the person aware that once they have reached the equity limit, the local authority may not be willing to fund their top-up, and the person may need to find other ways to pay for it or be prepared for a change in their care package.

9.56 Local authorities and individuals should also consider the length of time that a person’s intended contribution to care costs from savings would last, if they intend to contribute to their care costs from their savings. This should include consideration of the impact on their care if a person’s savings are depleted (normally this would involve increasing the amount the person is deferring).

9.57 An important factor in the sustainability of a deferred payment agreement will be any future care and support needs someone might face, and local authorities and people should consider allowing flexibility for changes in circumstance, including possible escalations of needs, when deciding how much someone should defer. Local authorities and people should factor any potential changes in circumstances into their considerations of sustainability.

9.58 The department has developed a tool to aid local authorities in assessing sustainability. Local authorities may use this tool to aid discussions and decisions about the amount to be deferred, but local authorities retain final responsibility for (and have discretion over) decisions taken about the agreements they enter into.

9.59 When agreement has been reached between a person and the local authority as to how much they want to defer, the local authority must ensure this is clearly and unambiguously set out in the deferred payment agreement. Further details on what happens once an amount has been agreed are set out in the section entitled ‘making the agreement’ below.

9.60 The amount being deferred should be reviewed on a regular basis to ensure the deferred amount does not exceed the equity limit as discussed above.^{[footnote 32]} Local authorities should have particular regard to the amount deferred as it approaches the equity limit.

9.61 Further details of local authorities’ responsibilities during the course of the DPA are set out in the relevant section below.

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Case study 5

Lucille discusses her care home fees with the local authority. Based on the equity available in her home (£134,250, as set out in Case study 3 above), Lucille could afford her weekly deferral of £454 for around 5 years. Given an average length of stay in a care home care of 19.7 months (source: BUPA 2010, cited in Laing and Buisson 2012/13), the local authority deems her projected care costs to be sustainable.

Lucille enquires as to the cost of a room with a garden view. This would increase her weekly deferral to £525 which she could afford for around four and a half years. The local authority deems this to be sustainable, so agrees to Lucille’s requested top-up.

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Obtaining security

9.62 A local authority must have adequate security in place when entering into a deferred payment agreement. The regulations set out one form of security that local authorities must accept, and also provide wider discretion for local authorities to accept other forms of security as they see fit. Local authorities should consider whether another type of security could be provided if a person cannot secure their deferred payment agreement with a charge on a property.

9.63 One form of ‘adequate security’ would be the local authority securing a first legal mortgage charge against a property on the Land Register. Local authorities must accept a first legal mortgage charge as adequate security and local authorities must offer a deferred payment to someone who meets the qualifying criteria for the scheme where the local authority is able to secure a first legal mortgage charge on the property.

9.64 In cases where an agreement is to be secured with a jointly-owned property, local authorities must seek both owners’ consent (and agreement) to a charge being placed on the property. Both owners will need to be signatories to the charge agreement, and the co-owner will need to agree not to object to the sale of the property for the purpose of repaying the debt due to the local authority (following the same procedure as in the case where an individual is the sole owner of a property).

9.65 The local authority must obtain similar consent to a charge being created against the property from any other person who has a beneficial interest in the property.

9.66 Under the discretionary scheme, local authorities have discretion to decide what else may constitute ‘adequate security’ for a deferred payment agreement, in cases where a first charge cannot be secured. A local authority’s decision should be based on an explicit and publicly-accessible policy of what other types of security they are willing to consider in addition to a first charge, but local authorities may consider the merits of each case individually. Other forms of security a local authority may choose to consider include (but are not limited to):

• a third-party guarantor – subject to the guarantor having / offering an appropriate form of security
• a solicitor’s undertaking letter
• a valuable object such as a painting or other piece of art
• an agreement to repay the amount deferred from the proceeds of a life assurance policy

9.67 A local authority has full discretion in individual cases to refuse a deferred payment agreement if it is not satisfied that adequate security is in place.^{[footnote 33]}

9.68 The security should also be revalued when the amount deferred equals or exceeds 50% of the value of the security to assess any potential change in the value (and consequently the person’s ‘equity limit’ should be reassessed in turn). After this revaluation, local authorities should revalue the security periodically to monitor any potential further changes in value. If in either case there has been any substantial change the local authority should review the amount being deferred as well, as set out in the section ‘how much can be deferred’ above.

Interest rate and administration charge

9.69 The deferred payment agreement scheme is intended to be run on a cost-neutral basis, with local authorities able to recoup the costs associated with deferring fees by charging interest. Local authorities can also recoup the administrative costs associated with DPAs, including legal and ongoing running costs, via administration charges which can be passed on to the individual. Administration charges and interest can be added on to the total amount deferred as they are accrued, although a person may request to pay these separately if they choose. The agreement must make clear that all fees deferred, alongside any interest and administrative charges incurred, must be repaid by the person in full. The local authority must also notify the individual in writing whenever they are liable for an administration charge.

9.70 Local authorities will have the ability to charge interest on any amount deferred, including any administration charge deferred. This is to cover the cost of lending and the risks to local authorities associated with lending, for example the risk of default. Where local authorities charge interest this must not exceed the maximum amount specified in regulations. A local authority may (but is not required to) charge the nationally-set maximum interest rate. The same interest rate must be charged on all deferred payments within a local authority.^{[footnote 34]}

9.71 The national maximum interest rate will change every 6 months on 1st January and 1st July. It will track the market gilts rate specified in the most recently published report by the Office of Budget Responsibility (OBR) plus a 0.15% default component. For example, gilt rate 1% plus 0.15% equals a maximum interest rate of 1.15%. The market gilt rate is currently published in the Economic and Fiscal Outlook, which is usually published twice-yearly on the OBR website. The figures can be found in the ‘Determinants of the fiscal forecast’ table, in the Economic and Fiscal Outlook.

Local authorities must ensure that any changes to the national maximum rate are reflected within their authority and are applied to any agreements they have entered into (unless they are already charging less than the national maximum). Individual agreements must also contain adequate terms and conditions to ensure that the interest rate within any given agreement does not exceed the nationally set maximum.

9.72 In extremely rare circumstances (such as a severe economic shock), government may need to make new regulations to change the maximum interest rate which local authorities are permitted to charge before the next January or July change date. These powers would only be exercised as a last resort.

9.73 Local authorities must inform people before they make the agreement if interest will be charged, what interest rates are currently set at, and when interest rates are likely to change. This is to enable people to make well-informed decisions about whether a deferred payment agreement is the best way for them to meet the costs of their care.

9.74 The interest charged and added to the deferred amount will be compounded, and local authorities should ensure when making the agreement that individuals understand that interest will accrue on a compound basis.

9.75 Interest can accrue on the amount deferred even once someone has reached the ‘equity limit’ (see ‘how much can be deferred’ above). It can also accrue after someone has died up until the point at which the deferred amount is repaid to the local authority. If the local authority cannot recover the debt and seeks to pursue this through the County Court system (as discussed in Annex D on debt recovery), the local authority may charge the higher County Court rate of interest.

9.76 Local authorities must set their administration charge at a reasonable level, and this level must not be more than the actual costs incurred by the local authority in provision of the Universal Deferred Payment Scheme, as set out in regulations. Relevant costs may include (but are not limited to) the costs incurred by a local authority whilst:

• registering a legal charge with the Land Registry against the title of the property, including Land Registry search charges and any identity checks required
• undertaking relevant postage, printing and telecommunications
• costs of time spent by those providing the service
• cost of valuation and re-valuation of the property
• costs for removal of charges against property
• overheads, including where appropriate (shares of) payroll, audit, management costs, legal service

9.77 Local authorities should maintain a publicly-available list of administration charges that a person may be liable to pay. It is good practice to separate charges into a fixed set-up fee for deferred payment agreements, reflective of the costs incurred by the local authority in setting up and securing a typical deferred payment agreement, and other reasonable one-time fees during the course of the agreement (reflecting actual charges incurred in the course of the agreement).

Making the agreement

9.78 Where someone chooses to enter into a deferred payment agreement, local authorities should aim to have the agreement finalised and in place by the end of the 12-week disregard period (where applicable) (see Annex B: Treatment of capital), or within 12 weeks of the person approaching the local authority regarding DPAs in other circumstances.

9.79 Decisions on a person’s care and support package, the amount they intend to defer, the security they intend to use and the terms of the agreement should only be taken following discussion between the local authority and the individual. Once agreement in principle has been reached between the local authority and the person, it is the local authority’s responsibility to transpose the details agreed into a deferred payment agreement, taking the legal form of a contract between the local authority and the person.

9.80 The local authority should provide a hard copy of the deferred payment agreement to the person, and they should be provided with reasonable time to read and consider the agreement, including time for the individual to query any clauses and discuss the agreement further with the local authority.

9.81 The agreement must clearly set out all terms, conditions and information necessary to enable the person to ascertain his or her rights and obligations under the agreement. These include:

1. a) terms to explain how the interest will be calculated and that it will be compounded if it is to be added to the deferred amount
2. b) information as to administrative costs the individual might be liable for
3. c) terms to explain how the adult may exercise his or her right to terminate the agreement, which should explain the process for and consequences of terminating the agreement and specify what notice should be given (see the section entitled ‘terminating the agreement’ below)
4. d) terms to explain the circumstances in which the local authority might refuse to defer or loan further fees (either when it is required to stop, for example if the person has already reached their ‘equity limit’, or when it has powers to stop, such as when a person qualifies for local authority support in paying for their care; as set out in the ‘how much can be deferred’ and ‘permission to refuse’ sections above)
5. e) that the local authority will secure their debt either by placing a legal (Land Registry) charge against the property, or by some other means specified
6. f) a term requiring the local authority to provide the person with a written statement every 6 months and within 28 days of request by the person, setting out how much the person owes to the authority and the cost to them of repaying the debt
7. g) a term which explains that the maximum amount which may be deferred is the equity limit and that this is likely to vary over time
8. h) a term which requires the local authority to give the adult 30 days written notice of the date on which they are likely to reach the equity limit
9. i) a term which requires the adult to obtain the consent of the local authority for any person to occupy the property
10. j) an explanation that the local authority will stop deferring its charges and making advances under a loan agreement if the person no longer receives care and support in a care home or supported living accommodation or if the local authority no longer considers that the adult’s needs should be met in such accommodation

9.82 If the agreement is not for the deferral of charges due to the authority (that is, a loan-type agreement), the agreement must also contain:

1. a) a term to make clear that the authority will make advances of the loan to the adult in instalments
2. b) a term to make clear that the purpose of the loan is to pay for costs of care and support in a care home or supported living accommodation. This should explain:
   1. (i) the consequences of any failure by the adult to pay those costs of care and support; and
   2. (ii) that the adult must inform the local authority if he or she no longer receives or intends to receive care in such accommodation.

9.83 The agreement should also stipulate:

1. a) the value of any accrued or possible administrative charges, and where possible a breakdown of their calculation
2. b) the means of redress if either party feels the other has broken the terms of the agreement
3. c) the person’s responsibilities regarding maintenance and insurance of their home
4. d) the person’s responsibility to notify the local authority of any change to their income, home or care and support
5. e) the person’s responsibility to notify the local authority if they intend to rent or sell their property and if someone has gained or may gain a beneficial interest in their property
6. f) the local authority’s responsibility to give the person 30 days written notice if it intends to cease to defer charges (or make loan instalments) under the agreement
7. g) a clear explanation of the consequences of taking out a DPA for the person and their property, including anybody who may reside in the property
8. h) the equity limit of their security (as discussed above in the section entitled ‘how much can be deferred’) and the scope for this to change upon revaluation of the security used for the DPA
9. i) the process for varying any part of the agreement
10. j) the process by which the local authority can require a re-valuation of a person’s chosen form of security

9.84 Local authorities should ensure at a minimum that people sign or clearly and verifiably affirm they have received adequate information on options for paying for their care, that they understand how the DPA works and understand the agreement they are entering into; and that they have had the opportunity to ask questions about the contract. A term reflecting this should be included in the agreement itself.

9.85 Local authorities will need to consider whether the deferred payment agreements they enter into are regulated credit agreements to which the Consumer Credit Act 1974 (CCA) and Financial Services and Markets Act 2000 (FSMA) apply.

9.86 The scope of ‘regulated credit agreements’ is set out in article 60B of the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001 (RAO). A credit agreement is regulated unless exempt, and there are a number of exemptions in articles 60C to 60H of the RAO. It is likely that most DPAs will fall within such an exemption. If the agreement is regulated, it will need to comply with all applicable requirements of the CCA. In addition, the local authority will need a relevant permission from the Financial Conduct Authority (FCA), and to comply with the FCA’s rules and principles, unless the exclusion in article 72G of the RAO applies ( if the credit agreement is within the scope of the Consumer Credit Directive FCA authorisation is required).

9.87 All deferred payment agreements will be subject to the Unfair Terms in Consumer Contracts Regulations 1999, so the terms will have to be written in plain, intelligible English and will not be binding if they are unfair to the borrowers. Local authorities will also have to ensure that they do not contravene the Consumer Protection from Unfair Trading Regulations 2008.

9.88 Under Section 79 of the Care Act, local authorities may delegate responsibility for deferred payment agreements to another body. This could potentially allow a number of local authorities to combine their collective resources and offer a regional solution tailored to the local conditions and the administrative burden they face. If a local authority chooses to exercise their powers for delegation, the local authority must satisfy itself that the body taking on responsibility for DPAs is complying with all appropriate regulations and guidance (including but not limited to those governing deferred payments). Any and all duties in this guidance document, in the regulations and in the relevant sections of the Care Act apply equally to any delegated authority as they do to local authorities. The local authority should also seek feedback from people entering into DPAs to satisfy themselves that the service being provided meets the standards expected of the local authority. In the case of delegation of responsibility, the local authority remains ultimately responsible for (and liable for) the DPA.

The local authority’s responsibilities whilst the agreement is in place

9.89 Local authorities must at a minimum provide people with 6-monthly written updates of the amount of fees deferred, of interest and administrative charges accrued to date, and of the total amount due and the equity remaining in the home (the ‘equity limit’ discussed in the section entitled at ‘how much can be deferred’ above). Local authorities should also provide the person with a statement on request within 28 days. Local authorities may provide updates on a more frequent basis at their discretion. The update should set out the amount deferred during the previous period, alongside the total amount deferred to date, and should also include a projection of how quickly someone would deplete all equity remaining in their chosen form of security up to their equity limit.

9.90 Local authorities should reassess the value of the chosen form of security once the amount deferred exceeds 50% of the security (and periodically thereafter), and adjust the equity limit and review the amount deferred if the value has changed.

9.91 Local authorities may offer people a way to check their statement at any point in the year via an online facility.

9.92 Local authorities may choose to develop advice and guidance around maintaining a home, renting, and income. Local authorities may also offer services/ products to help the person meet the requirements for maintenance and insurance, but cannot compel a person to take on their product. Local authorities must accept reasonable alternative maintenance and insurance services.

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Case study 6:

For illustrative purposes, we have used an interest rate of 3.5%. After 6 months, Lucille receives her first statement. It confirms she has deferred a total of £13,900, including £110 in interest and £100 in administration fees.

At this point, the local authority revalues her property and finds its value has increased to £170,000. Based on the amount deferred and her care costs, her equity would afford her just over 4 and a half more years’ care at this price.

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Contractual responsibilities on the individual whilst the agreement is in place

9.93 The deferred payment agreement sets out various contractual requirements on the individual as well as on the local authority. These are set out briefly in sections above, but the person’s consequent responsibilities are recapped in more detail in the paragraphs below.

9.94 If the local authority is exercising its right to require the adult to make a contribution from income, it should include in the legal agreement provisions requiring the person to notify the local authority of any changes in their income.

9.95 The agreement should also contain provisions requiring the adult to notify the authority of changes in their need for care and support, if those changes are ones which will mean that the authority must or is entitled to stop making further instalments under the agreement or to alter the amount of the instalments.

9.96 Similarly if the agreement has been entered into on the basis that the adult’s property has not been disregarded for the purposes of the financial assessment in section 17 and it is a term of the agreement that the local authority will cease making or reduce the amount of instalments it makes, the agreement should require the person to inform the authority of changes which mean that the property may be disregarded.

9.97 The local authority should include in a contract provisions requiring someone to ensure that appropriate arrangements are in place to maintain their home whilst they are in care. In particular, the contract should require that their home is maintained adequately, and require someone to have in place an arrangement for regular maintenance to take place. Local authorities should also require the person to have adequate insurance for their property. If their home is to be left empty for an extended period of time, the person will need to ensure their insurance covers this adequately and that any terms required by the insurer are met.

9.98 The local authority must include in a contract provisions which require the person to obtain the authority’s consent before allowing someone to move into the property after the agreement has been made. In these circumstances, the local authority may (if it is reasonable to do so) require written consent from the person which places the debt owed to the local authority above any beneficial interest they may accrue in the property.

Termination of agreement

9.99 A deferred payment agreement can be terminated in 3 ways:

1. a) at any time by the individual, or someone acting on their behalf, by repaying the full amount due (this can happen during a person’s lifetime or when the agreement is terminated through the deferred payment agreement holder’s death)
2. b) when the property (or form of security) is sold and the authority is repaid [see note 6]
3. c) when the person dies and the amount is repaid to the local authority from their estate

Note 6

In the case that a deferred payment agreement is agreed on the basis of a form of security other than property, local authorities will need to make provision in the agreement for conclusion of the deferred payment agreement in the event that the given security is disposed of/comes to fruition.

9.100 All 3 scenarios for the termination of the agreement are discussed below, alongside the various options for repayment. On termination, the full amount due (including care costs, any interest accrued and any administrative or legal fees charged) must be paid to the local authority.

9.101 If a person decides to sell their home, they should notify the local authority during the sale process. They will be required to pay the amount due to the local authority from the proceeds of the sale, and the local authority will be required to relinquish the charge on their property.

9.102 A person may decide to repay the amount due to the local authority from another source, or a third party may elect to repay the amount due on behalf of the individual. In either case, the local authority should be notified of the person’s/the third party’s intention in writing, and the local authority must relinquish the charge on the property on receipt of the full amount due.

9.103 If the deferred payment is terminated due to the person’s death, the amount due to the local authority must be either paid out of the estate or paid by a third party. A person’s family or a third party may wish to settle the debt to the local authority by other means of repayment (as may be the case if the family wanted to avoid having to sell the property or means of security), and the local authority must accept an alternative means of payment in this case, provided this payment covers the full amount due to the local authority.

9.104 The executor of the will or administrator of the estate can decide how the amount due is to be paid; either from the person’s estate (usually via the sale of the house or potentially via a life assurance policy) or from a third party source.

9.105 A local authority should wait at least 2 weeks following the person’s death before approaching the executor with a full breakdown of the total amount deferred (but a family member or the executor can approach the local authority to resolve the outstanding amount due prior to this point).

9.106 Responsibility for arranging for repayment of the amount due (in the case of payment from the estate) falls to the executor of the will.

9.107 Interest will continue to accrue on the amount owed to the local authority after the individual’s death and until the amount due to the local authority is repaid in full.

9.108 If terminated through a person’s death, the amount owed to a local authority under a deferred payment agreement falls due 90 days after the person has died. After this 90-day period, if a local authority concludes active steps to repay the debt are not being taken, for example if the sale is not progressing and a local authority has actively sought to resolve the situation (or the local authority concludes the executor is wilfully obstructing sale of the property), the local authority may enter into legal proceedings to reclaim the amount due to it. Further information on debt recovery is included at Annex D of this guidance.

9.109 In whichever circumstance an agreement is terminated, the full amount due to the local authority must be repaid to cover all costs accrued under the agreement, and the person (and/or the third party where appropriate) must be provided with a full breakdown of how the amount due has been calculated. Once the amount has been paid, the local authority should provide the individual with confirmation that the agreement has been concluded, and confirm (where appropriate) that the charge against the property has been removed.

Person-centred care and support planning

This section includes chapters 10 to 13 and has information on:

10. Care and support planning

This chapter provides guidance on sections 24 and 25 of the Care Act 2014, and includes:

• when to undertake care and support planning
• what it means to ‘meet needs’, and considerations in deciding how to meet needs
• how to undertake care and support planning, and support planning
• production of the plan
• Involving the person
• authorising others (including the person) to prepare the plan
• care planning for people who lack capacity
• minimising and authorising a deprivation of liberty (DOL) for people who lack capacity
• combining plans
• sign-off and assurance
• protecting property of adults being cared for away from home

10.1 Care and support should put people in control of their care, with the support that they need to enhance their wellbeing and improve their connections to family, friends and community. A vital part of this process for people with ongoing needs which the local authority is going to meet is the care and support plan or support plan in the case of carers (henceforth referred to as ‘the plan’).

10.2 The person must be genuinely involved and influential throughout the planning process, and should be given every opportunity to take joint ownership of the development of the plan with the local authority if they wish, and the local authority agrees. There should be a default assumption that the person, with support if necessary, will play a strong pro-active role in planning if they choose to. Indeed, it should be made clear that the plan ‘belongs’ to the person it is intended for, with the local authority role being to ensure the production and sign-off of the plan to ensure that it is appropriate to meet the identified needs.

10.3 The personal budget in the plan will give everyone clear information regarding the costs of their care and support and the amount that the local authority will make available, in order to help people to make better informed decisions as to how needs will be met. The ability to meet needs by taking a direct payment must be clearly explained to the person in a way that works best for them, so that they can make an informed decision about the level of choice and control they wish to take over their care and support. This should mean offering the choice more than once in the process and enabling that choice by providing examples of how others have used direct payments, including via direct peer support, for example from user-led organisations.

10.4 Some people will need assistance to make plans and decisions, and to be involved in the planning process. The modern care and support system should routinely enable supported decision making, where options and choices are presented simply and clearly. Independent advocates (if used) must be instructed early in the assessment and planning process for those who have substantial difficulty in engaging with the care system, and have no other means of accessing appropriate support through friends or relatives to facilitate their involvement. If the person’s substantial difficulty only becomes apparent during the assessment, an advocate must be instructed as soon as this becomes known (see chapter 7).

10.5 Ultimately, the guiding principle in the development of the plan is that this process should be person-centred and person-led, in order to meet the needs and achieve the outcomes of the person in ways that work best for them as an individual or as part of a family. Both the process and the outcomes should be built holistically around people’s wishes and feelings, their needs, values and aspirations, irrespective of the extent to which they choose or are able to actively direct the process.

Definitions

10.6 This chapter applies to people in need of care and support and carers equally, unless specifically stated. It should be read in conjunction with the other chapters in this section (personal budgets, direct payments and review of care plans).

10.7 Unless otherwise stated, this chapter (and subsequent chapters in the section of ‘Person Centred Care and Support Planning’) applies to everyone whose needs are being met by the local authority, regardless of the setting in which the needs are met. For example, people in care homes must also receive a care and support plan and personal budget.

10.8 For the purposes of this chapter ‘the plan’ means either the care and support plan (in the case of adults with care and support needs) or the support plan (in the case of carers). When to undertake care and support planning, and support planning

10.9 Following the needs and carer’s assessment and determination of eligibility (see chapter 6), a plan must be provided where a local authority is required to meet needs under section 18 or 20(1) of the Care Act, or decides to meet needs under section 19(1) or (2) and 20(6) of the Act. Where a local authority is required to meet needs under section 117 of the Mental Health Act 1983 this chapter should be read in conjunction with chapter 34 of the Mental Health Act 1983 Code of Practice (on the Care Programme Approach) and Refocusing the Care Programme Approach.

What does it mean to ‘meet needs’?

10.10 ‘Meeting needs’ is an important concept under the Act and moves away from the previous terminology of ‘providing services’. This enables a greater variety of approaches in how needs can be met, developed through care and support planning as described in this chapter. The concept of ‘meeting needs’ is intended to be broader than a duty to provide or arrange a particular service. Because a person’s needs are specific to them, there are many ways in which their needs can be met. The intention behind the legislation is to encourage this diversity, rather than point to a service or solution that may be neither what is best nor what the person wants. The purpose of the care and support planning process is to agree how a person’s needs should be met, and therefore how the local authority will discharge its duty, or its power, to do so.

10.11 There are a number of broad options for how needs could be met, and the use of one or more of these will depend on the circumstances. Section 8(2) of the Act gives some examples of ways of meeting needs, and would cover:

• the local authority directly providing some type of support, for example by providing a reablement or short-term respite service
• making a direct payment, which allows the person to purchase their own care and support
• some combination of the above, for example the local authority arranging a homecare service whilst also providing a direct payment to meet other needs

10.12 Where the local authority provides or arranges for care and support, the type of support may itself take many forms. These may include more traditional ‘service’ options, such as care homes or homecare, but may also include other types of support such as assistive technology in the home or equipment/adaptations, and approaches to meeting needs should be inclusive of less intensive or service-focused options.

10.13 Needs may be met through types of care and support which are available universally, including those which are not directly provided by the local authority. For example, in some cases needs could be met by a service which is also made available as part of a local authority’s plans for preventing or reducing needs for care and support (under Section 2 of the Act). Needs could also be met, for example, by putting a person in contact with a local community group or voluntary sector organisation.

10.14 The examples of how needs can be met listed in the Act are not exhaustive, but cover the most common means of meeting needs. In addition, there are other methods which may be suitable for meeting a person’s needs, for example by arranging an individual service fund (see chapter 11 on personal budgets which also includes detail on individual service funds). This is a budget held by a provider, rather than by the local authority or the individual. The local authority makes a payment to the provider, which then holds a budget over which the individual has control.

10.15 The local authority may also consider whether it can effectively meet a person’s needs by ‘brokering’ a service on behalf of an individual in certain cases. ‘Brokering’ services are commonly offered by organisations which are independent of the local authority, and may be accessed by any person wishing to find care. However, the local authority may also provide such support where it meets a person’s needs. ‘Brokering’ would involve the local authority supporting an individual to make a choice about the provider of their care, and to enter into a contract with that provider. The local authority would not need to hold the contract with the provider, but would be required to assure itself that the chosen provider and terms of the contract were appropriate to meet the person’s needs.

10.16 The local authority would remain under the duty to meet a person’s eligible needs, and so would need to be satisfied both that this was an effective way of meeting those needs, and that the person was in agreement to this approach being used. It is likely that ‘brokering’ would only be an effective way of meeting a person’s needs in exceptional circumstances, for example where a person is fully funding their own care and wishes to retain control of the contract with their provider, but wants the local authority to meet their needs and the local authority has agreed to do so. If there is a risk that a person’s needs would not be met effectively by means of ‘brokering’, the local authority should discount it as an option and proceed with other ways of meeting that person’s needs, such as direct commissioning of services from a provider. In considering such an option, the local authority should also have regard to the likelihood of the person continuing to be willing and able to manage such arrangements in the future, including their ability to pay the charges due (for example, to mitigate against a future loss of capacity or disposal of their assets, such that the local authority may be required to take over the contract with the provider). The local authority would continue to support the person in meeting any other needs, offering ongoing support and keeping the arrangements under review to ensure that the needs were met. The person would have a care and support plan as usual.

10.17 The individual’s position in this approach would in some respects be akin to a person who had taken a direct payment to commission their own services, in that they would hold their own contract with a provider whilst the local authority is under a duty to meet their needs.

10.18 The difference would be that in the case of a direct payment, the money for commissioning the service comes from the local authority, whereas in the case of ‘brokering’ it comes from the individual directly. This option, therefore, would only likely be of use for meeting the needs of people who are fully funding their own care but ask the local authority to meet their eligible needs, and who are not using alternative arrangements such as an individual service fund.  

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Case study: Using discretionary powers to meet needs

Mrs Pascal, who is frail and elderly, was admitted to hospital after a fall. The hospital has established that Mrs Pascal currently has no care and support plan in place and made contact with the local authority to arrange a needs assessment. The local authority assesses that she has eligible needs which will be best met in a care home setting.

The local authority undertakes a financial assessment which finds that Mrs Pascal’s finances are above the limit for financial support from the local authority. The authority provides her with information and advice about her options. Mrs Pascal expresses extreme nervousness about seeking a placement on her own as she has struggled with managing her personal finances in recent times and does not have any family who are able to support her.

After a consultation, both Mrs Pascal and her local authority agree that support with arranging and managing a care placement would be beneficial for her wellbeing and would adequately meet her eligible needs. The authority arranges for Mrs Pascal to meet a trusted brokerage organisation which discusses her needs and arranges a contract with a care home on behalf of Mrs Pascal that she is very happy with.

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Considerations in meeting needs

10.19 However the local authority is meeting needs, the principles in this chapter should be followed, such as ensuring the process is person-centred, and involving and taking all reasonable steps to agree the plan with the person.

10.20 The local authority must take into consideration the individual’s preferences. The authority should consider the person’s goals in approaching the authority for support, and the level or nature of support desired. Where the person wishes to take more control over their own care and support, this should be reflected in the route taken. Similarly, where the person asks for more local authority support (for example, because they lack the skills or confidence to engage with the provider market and do not have family or friends who are willing and/or able to support them with this), the authority should respond accordingly in the decision taken about how needs will be met.

Relationship with other services

10.21 Local authorities should also have regard to how needs may be met beyond the provision, or arrangement, of services by the authority. A person may already be in receipt of care and support which meets their needs (whether self-funded and arranged or not). For example, needs may be met by a carer, in an educational establishment or by another institution other than the local authority. In these circumstances the local authority remains under a duty to meet the person’s eligible needs. If however, the alternative means of meeting the needs is in place and the authority is satisfied that this alternative means is, in fact, meeting the person’s eligible needs, then the authority may not actually have to arrange or provide any services to comply with that duty.

10.22 However, the local authority should nonetheless record those needs through the assessment process, determine whether the needs meet the eligibility criteria and keep under review whether the authority needs to do anything in order to comply with its duty to meet the person’s eligible needs (for example, if the alternative services being provided to meet the needs cease or the authority is no longer satisfied that the alternative services adequately meet the person’s needs).

10.23 Sections 21 to 23 of the Act set out the limitations on the circumstances in which local authorities may meet care and support needs. In particular, they make clear that local authorities must not meet needs by providing or arranging any health service or facility which is required to be provided by the NHS, or doing anything under the Housing Act 1996. The aim of these provisions is to avoid duplication in the provision of services and facilities, and provide clarity about the limits of care and support, and the circumstances in which care and support should be provided as opposed to health services or housing services (or vice versa).

10.24 There may be other services to which a person is entitled under other legislation (but which could also be provided as part of the provision of care and support), which a local authority is not specifically prohibited from providing under the Act. Where there is a risk of overlapping entitlements (for example, where 2 different organisations may be under a duty to provide a service in relation to the same needs), local authorities should take steps to support the individual to access the support to which they are entitled under other legislation. This may include, for example, helping the person to access some disability-related benefits and allowances. It may also include working with the housing authority to ensure that there is a clear process in place for access to disabled facilities grants to avoid the risk of duplication of work in meeting the same needs.

10.25 The duty to meet eligible needs is not discharged just because a person has another entitlement to a different service which could meet those needs, but of which they are not availing themselves. The needs remain ‘unmet’ (and so the local authority remains under a duty to meet them) until those needs are actually met by the relevant service bring provided or arranged. Local authorities should therefore consider how to inform and advise people on accessing any such entitlements at the earliest stage possible, as well as working collaboratively with other local services to share information.

Needs met by a carer

10.26 Local authorities are not under a duty to meet any needs that are being met by a carer. The local authority must identify, during the assessment process, those needs which are being met by a carer at that time, and determine whether those needs would be eligible. But any eligible needs met by a carer are not required to be met by the local authority, for so long as the carer continues to do so. The local authority should record in the care and support plan which needs are being met by a carer, and should consider putting in place plans to respond to any breakdown in the caring relationship.

Other considerations

10.27 In determining how to meet needs, the local authority may also take into reasonable consideration its own finances and budgetary position, and must comply with its related public law duties. This includes the importance of ensuring that the funding available to the local authority is sufficient to meet the needs of the entire local population. The local authority may reasonably consider how to balance that requirement with the duty to meet the eligible needs of an individual in determining how an individual’s needs should be met (but not whether those needs are met). However, the local authority should not set arbitrary upper limits on the costs it is willing to pay to meet needs through certain routes – doing so would not deliver an approach that is person-centred or compatible with public law principles. The authority may take decisions on a case-by-case basis which weigh up the total costs of different potential options for meeting needs, and include the cost as a relevant factor in deciding between suitable alternative options for meeting needs. This does not mean choosing the cheapest option; but the one which delivers the outcomes desired for the best value.

Non-eligible needs

10.28 Where the local authority is not required to meet needs, it nonetheless may use its powers to meet any other needs. This may include, for example, meeting needs which are not ‘eligible’ (for example, those which do not meet the eligibility criteria), or meeting eligible needs in circumstances where the duty does not apply (for example, where the person is ordinarily resident in another area). Where the local authority exercises such a power to meet other needs, the same duties would apply regarding the next steps, and therefore a plan must be provided.

10.29 If the local authority decides not to use its powers to meet other needs, it must give the person written explanation for taking this decision, and should give a copy to their advocate if the person requests. If the person cannot request this, then a copy should be given to the person’s advocate or appropriate individual if this in the best interests of the person. This explanation must also include information and advice on how the person can reduce or delay their needs in future. This should be personal and specific advice based on the person’s needs assessment and not a generalised reference to prevention services or signpost to a general web-site. For example, this should involve consideration of alternative ways in which a person could reduce or delay their care and support needs, including signposting to support within the local community. Authorities may choose to provide this information after the eligibility determination, in which case this need not be repeated again. At whatever stage this is done, in all cases the person must be given a written explanation of why their needs are not being met. The explanation provided to the person must be personal to and should be accessible for the person.

10.30 Where a local authority is meeting some needs, but not others, a combination of the 2 approaches above must be followed. The person must receive a care and support plan for the needs the local authority is required, or decides to meet that accords to the Act and this guidance, and which also includes a tailored package of information and advice on how to delay and/or prevent the needs the local authority is not meeting. This information should be given to the person in a format accessible to them so they are clear what needs are being met by the local authority.

How to undertake care and support planning, and support planning

10.31 The plan must detail the needs to be met and how the needs will be met, and will link back to the outcomes that the adult wishes to achieve in day-to-day life as identified in the assessment process and to the wellbeing principle in the Act. This should reflect the individual’s wishes, their needs and aspirations, and what is important to and for them, where this is reasonable. ^{[footnote 37]} This process is central to the provision of person-centred care and support that provides people with choice and control over how to meet their needs. The local authority should encourage creativity in planning how to meet needs, and refrain from judging unusual decisions as long as these are determined to meet needs in a reasonable way.

10.32 The guiding principle therefore is that the person be actively involved and is given every opportunity to influence the planning and subsequent content of the plan in conjunction with the local authority, with support if needed. Joint planning does not mean a 50:50 split; the person can take a bigger share of the planning where this is appropriate and the person wishes to do so. A further principle is that planning should be proportionate. The person should not be required to go through lengthy processes which limit their ability to be actively involved, unless there are very strong reasons to add in elements of process and decision-making. Wherever possible the person should be able to be fully involved in the development of their plan, and any revision if circumstances change, with minimum process.

Production of the plan

10.33 The plan should be person-centred, with an emphasis on the individual having every reasonable opportunity to be involved in the planning to the extent that they choose and are able. This requires the local authority to ensure that information is available in a way that is meaningful to the person, and that they have support and time to consider their options. A named contact or lead professional should be considered both as part of care planning, and in the final plan, so that the person knows how to contact the local authority. The planning choices offered should range from support for the person, to jointly develop their plan with the local authority alone or with their family, friends or whoever they may wish to involve (this might include web-based resources, written information and peer support), through to one-to-one support from a paid professional, such as a social worker which may be the same person who undertook the assessment.

10.34 Where the person has substantial difficulty in being actively involved with the planning process, and they have no family and friends who are able to facilitate the person’s involvement in the plan, the local authority must provide an independent advocate to represent and support the person to facilitate their involvement (see chapter 7). Likewise, where a person with specific expertise or training in a particular condition (for example, deafblindness) has carried out the assessment, someone with similar knowledge (and preferably the same person to ensure continuity) should also be involved in production of the plan.

10.35 In ensuring that the process is person-centred, the local authority should ensure that any staff responsible for developing the plan with the person are trained in the Mental Capacity Act if appropriate, familiar with best practice, and that there is sufficient local availability of independent advocacy and peer support, including access to social work advice.

10.36 When developing the plan, there are certain elements that must always be incorporated in the final plan, [unless excluded by the Care and Support (Personal Budget Exclusion of Costs) Regulations 2014]. These are:

• the needs identified by the assessment
• whether, and to what extent, the needs meet the eligibility criteria
• the needs that the authority is going to meet, and how it intends to do so
• for a person needing care, for which of the desired outcomes care and support could be relevant
• for a carer, the outcomes the carer wishes to achieve, and their wishes around providing care, work, education and recreation where support could be relevant
• the personal budget (see chapter 11)
• information and advice on what can be done to reduce the needs in question, and to prevent or delay the development of needs in the future
• where needs are being met via a direct payment (see chapter 12), the needs to be met via the direct payment and the amount and frequency of the payments

10.37 These requirements should not encourage lengthy process where this is not necessary, or fixed decisions that cannot be changed easily. The maximum flexibility should be incorporated to allow adjustment and creativity, for example by allowing people to include personal elements into their plan which are important to them (but which the local authority is not under a duty to meet), or by developing the plan in a format that works for the person rather than a standard template.

10.38 Consideration of the needs to be met should take a holistic approach that covers aspects such as the person’s wishes and aspirations in their daily and community life, rather than a narrow view purely designed to meet personal care needs.

10.39 Consideration of needs should also include the extent to which the needs or a person’s other circumstances may mean that they are at risk of abuse or neglect. The planning process may bring to light new information that suggests a safeguarding issue, and therefore lead to a requirement to carry out a safeguarding enquiry (see chapter 14). Where such an enquiry leads to further specific interventions being put in place to address a safeguarding issue, this may be included in the care and support plan.

10.40 In considering the person’s needs and how they may be met, the local authority must take into consideration any needs that are being met by a carer. The person may have assessed eligible needs which are being met by a carer at the time of the plan – in these cases the carer must be involved in the planning process. Provided the carer remains willing and able to continue caring, the local authority is not required to meet those needs. However, the local authority should record the carer’s willingness to provide care and the extent of this in the plan of the person and also the carer, so that the authority is able to respond to any changes in circumstances (for instance, a breakdown in the caring relationship) more effectively. Where the carer also has eligible needs, the local authority should consider combining the plans of the adult requiring care and the carer, if all parties agree, and establish if the carer requires an independent advocate.

10.41 Local authorities should have regard to how universal services and community-based and/or unpaid support could contribute to the factors in the plan, including support that promotes mental and emotional wellbeing and builds social connections and capital. This may require additional learning and development skills and competencies for social workers and care workers which local authorities should provide.

10.42 Authorities are free, and are indeed encouraged, to include additional elements in the plan where this is proportionate to the needs to be met and agreed with the person the plan is intended for. For example, some people may value having an anticipated review date built into their plan in order for them to be aware of when the review will take place. As detailed in the review chapter, it is the expectation that the plan is reviewed no later than every 12 months, although a light-touch review should be considered 6-8 weeks after the plan and personal budget have been signed off.

10.43 The plan should be proportionate to the needs to be met, and should reflect the person’s wishes, preferences and aspirations. However, local authorities should be aware that a ‘proportionate’ plan does not equate to a light-touch approach, as in many cases a proportionate plan will require a more detailed and thorough examination of needs, how these will be met and how this connects with the outcomes that the adult wishes to achieve in day-to-day life.

10.44 For example, the person may have fluctuating needs, in which case the plan should make comprehensive provisions to accommodate for this, as well as indicate what contingencies are in place in the event of a sudden change or emergency. This should be an integral part of the care and support planning process, and not something decided when someone reaches a crisis point. Furthermore, specific consideration should be given to how planning is conducted in end of life care.

10.45 In all cases, additional content to the plan must be agreed with the adult and any other person that the adult requests, and should be guided by the person the plan is intended for. There should also be no restriction or limit on the type of information that the plan contains, as long as this is relevant to the person’s needs and/or outcomes. It should also be possible for the person to develop their plan in a format that makes sense to them, rather than this being dictated by the recording requirements of the local authority.

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Case study: Fluctuating needs

Miss S has Multiple Sclerosis and requires a frame or wheelchair for mobility. Miss S suffers badly with fatigue, but for the majority of the time she feels able to cope with daily life with a small amount of care and support. However, during relapses she has been unable to sit up, walk or transfer, has lost the use of an arm or lost hervision completely. This can last for a few weeks, and happens 2 or 3 times a year; requiring 24 hour support for all daily activities.

In the past, Miss S was hospitalised during relapses as she was unable to cope at home. However, for the past 3 years, she has received a care and support package that include direct payments which allows her to save up one month’s worth of 24 hour care for when she needs it, and this is detailed in the care and support plan.

Miss S can now instantly access the extra support she needs without reassessment and has reassurance that she will be able to put plans in place to cope with any fluctuating needs. She has not been hospitalised since.

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10.46 In developing the plan, the local authority must inform the person which, if any, of their needs may be met by a direct payment (see chapter 12). In addition to this, the local authority should provide the person (and/or their independent advocate or any other individual supporting the person, if relevant and if the person wishes this) with appropriate information and advice concerning the usage of direct payments, how they differ from traditional services, and how the local authority will administer the payment (for example an explanation of the direct payment agreement or contract, and how it will be monitored). This advice should also include detail such as:

• the ability for someone else (such as a carer) to receive and manage the direct payment on behalf of the person
• the ability to request to pay a close family member to provide care and/or administration and management of the direct payment if the local authority determines this to be necessary
• the difference between purchasing regulated and unregulated services (for example regarding personal assistants)
• explanation of responsibilities that come with being an employer, managing the payment, and monitoring arrangements and how these can be managed locally without being a burden
• signposting to direct payment support and support organisations available; in the area (for example, employment, payroll, admin support, personal assistants, peer support)
• that there is no curtailment of choice on how to use the direct payment (within reason), with the aim to encourage innovation
• local examples and links to people successfully using direct payment in similar circumstances to the person (providing these groups agree)
• the option to have needs met by a mixed package of direct payments and other forms of support or arrangements

10.47 This information provided upfront should assist the person to decide whether they wish to request a direct payment to meet some or all of their needs and should also be available at various points in the process to ensure people have the best opportunities possible to consider how direct payments may be of benefit to them. However the person chooses to have their needs met, whether by direct payment, by the provision of local authority-arranged or directly provided care and support, or third-party provision, or a mix of these, there should be no constraint on how the needs are met as long as this is reasonable. The local authority has to satisfy itself that the decision is an appropriate and legal way to meet needs, and should take steps to avoid the decision being made on the assumption that the views of the professional are more valid than those of the person. Above all, the local authority should refrain from any action that could be seen to restrict choice and impede flexibility.

10.48 It is important that people are allowed to be very flexible to choose innovative forms of care and support, from a diverse range of sources, including quality providers but also ‘non-service’ options such as Information and Communication Technologies (ICT) equipment, club membership, and massage. Lists of allowable purchases should be avoided as the range of possibilities should be very wide and will be beyond what the local authority is able to list at any point in time. While many authorities may choose to operate lists of quality accredited providers to help people choose (for example some authorities include trading standards-style ‘buy with confidence’ approaches) the use of such lists should not be mandated as the only choice offer to people. Limited lists of ‘prescribed providers’ that are only offered to the person on a ‘take it or leave it’ basis do not fit with the government’s vision of personalised care and should be avoided.

Involving the person

10.49 In addition to taking all reasonable steps to agree how needs are to be met, the local authority must also involve the person the plan is intended for, the carer (if there is one), and/or any other person the adult requests to be involved. Where the person lacks capacity to ask the authority to do that, the local authority must involve any person who appears to the authority to be interested in the welfare of the person and should involve any person who would be able to contribute useful information. An independent advocate must be provided if section 67 of the Act applies (see chapter 7). The person, and their carers, will have the best understanding of how the needs identified fit into the person’s life as a whole and connect to their overall wellbeing (see chapter 1). They are well placed to consider and identify which care and support options would best fit into their lifestyle and help them to achieve the day to day outcomes they identified during the assessment process. In practice, local authorities should give consideration to include a prompt to the person during the initial stages of the planning process to ask whether there is anyone else that the person wishes to be involved. Where the person lacks capacity, the local authority should make a best interests decision about who else should be involved.

10.50 The level of involvement should be agreed with the individual and any other party they wish to involve and should reflect their needs and preferences. This may entail local authorities involving the person through regular planning meetings, or there may be instances where remote involvement is just as effective, such as over the telephone, through video conferencing, or other means. In other circumstances, local authorities will need to seek the support of speech and language therapists or other specialists such as interpreters. Some people will need little help to be involved, others will need much more. Social workers or other relevant professionals should have a discussion with the person to get a sense of their confidence to take a lead in the process and what support they feel they need to be meaningfully involved.

10.51 The person should be supported to understand what is being discussed and what options are available for them. The local authority should make sure that a person’s lack of confidence to take a lead in the process should not limit the extent to which they can play an active role, if they wish to do so. In all cases, people should be allowed to gain support from individuals who they choose to assist their involvement in the planning process. Where they have substantial difficulty in being actively involved in the process, then they should be assisted by a family member or friend. If the person already has an advocate, whose role has been to support the person on matters not under the Care Act, then it may be appropriate for them to support the individual’s involvement and represent them. However, if an advocate is required under the Mental Capacity Act 2005 (MCA) as well as the Care Act, then the instruction, appointment and qualification of the advocate must meet the requirements of the MCA.

10.52 The local authority must instruct an independent advocate if there is no one to represent and support the person’s involvement (see chapter 7). This duty arises if the person would, without the representation and support of an independent advocate, experience substantial difficulty in any of the following:

• understanding relevant information
• retaining that information
• using or weighing that information as part of the process of being involved
• communicating their views, wishes or feelings (whether by talking, using sign language, or any other means)

10.53 For example, there may be cases where a person who has substantial difficulty in the above, has no family or friend who can help, and therefore requires an independent advocate to understand the relevant information provided by the local authority, and to be able to use it to effectively plan for their care and support.

10.54 Genuine involvement will aid the development of the plan, increase the likelihood that the options selected will effectively support the adult in achieving the outcomes that matter to them, and may limit disputes as people involved will be fully aware and have agreed to decisions made. Local authorities should ensure that staff have appropriate learning and development opportunities in order to be able to facilitate involvement in the development of the plan.

Authorising others (including the person) to prepare the plan jointly with the local authority

10.55 As stated earlier in this guidance, it is important that local authorities give people every opportunity to prepare their own plan in conjunction with the local authority if they wish.

10.56 Where a plan is being jointly prepared by the local authority and the person whose plan it is, or the local authority and a third party, the local authority should ensure that relevant information is shared securely, promptly and in accordance to the Data Protection Act to allow the plan to be prepared in a timely fashion.

10.57 A partnership approach should be taken, where each partner knows their role and the parties supported to identify options and choose between them. For example, the person may need help to weigh up different service options to understand what each involves and to be able to choose the most appropriate and least restrictive option possible.

10.58 The local authority should also consider cases or circumstances where it may not be appropriate to jointly prepare the plan. For example, a person may not wish their family to be involved, or the authority may be aware that family members may have conflicting interests, or the person may have asked the local authority to prepare the plan with someone who lives far away from the person and even with the assistance of email, phone and other methods of communication is unable to prepare the plan in a timely fashion. The test for allowing the person and others to prepare the plan jointly with the local authority should start with the presumption that the person at the heart of the care plan should give consent for others to do so; and should also have safeguarding principles embedded to ensure that there is no conflict of interest between the person and the third party they wish to involve to prepare the plan jointly with. Where a person lacks capacity and cannot consent to third parties jointly preparing the plan, the local authority must always act in the best interests of the person requiring care and support.

Planning for people who lack capacity

10.59 Good, person-centred care planning is particularly important for people with the most complex needs. Many people receiving care and support have mental impairments, such as dementia or learning disabilities, mental health needs or brain injuries. The principles of the Care Act apply equally to them, in addition to the principles and requirements of the Mental Capacity Act 2005 (MCA) if the person lacks capacity (see also chapter 7 on independent advocacy).

10.60 The MCA requires local authorities to assume that people have capacity and can make decisions for themselves, unless otherwise established. Every adult has the right to make his or her own decisions in respect of his or her care plan, and must be assumed to have capacity to do so unless it is proved otherwise. This means that local authorities cannot assume that someone cannot make a decision for themselves just because they have a particular medical condition or disability.

10.61 The local authority must support the person to understand and weigh up information, to offer choices and help people to exercise informed choice. A person must be given all practicable help to make the specific decision before being assessed as lacking capacity to make their own decisions.

10.62 Local authorities must understand that people have the right to make what others might regard as an unwise or unusual decision. Everyone has their own values, beliefs and preferences which may not be the same as those of other people. People cannot be treated as lacking capacity for that reason. Sometimes the care and support plan may have unusual aspects; the question to explore is whether it will meet the assessed needs and lead to the desired outcomes.

10.63 If a local authority thinks a person may lack capacity to make a decision or a plan, even after they have offered them all practicable support, a social worker or other suitably qualified professional should carry out a capacity assessment in relation to the specific decision to be made. For example, the local authority may assess whether the person has the capacity to decide whether family members should be involved in their care planning or whether the person has the capacity to decide on whether a particular support option will meet their needs.

10.64 Where an individual has been assessed as lacking capacity to make a particular decision, then the local authority must commence care planning in the person’s best interests under the meaning of the MCA. Furthermore a person making a decision concerning a plan on behalf of a person who lacks capacity must consider whether it is possible to make a decision or a plan in a way that would be less restrictive of the person’s rights and freedoms of action. Any restriction must be in the person’s best interests and necessary to prevent harm to the person, and a proportionate response to the likelihood of the person suffering harm and the seriousness of that harm.

10.65 The duty to involve the person remains throughout the process. If lack of capacity is established, it is still important that the person is involved as far as possible in making decisions. Planning should always be done with the person and not for them; should always start by the identification of their wishes, feelings, values and aspirations, not just their needs, and should always consider their wellbeing in the wider context of their rights to security, to liberty, and to family life.

10.66 Where a person has substantial difficulty in being fully involved in their care planning or lacks capacity to agree and consent to the care plan, they may be supported by family members or friends. If a person has no family or friend who is able to facilitate the person’s involvement available and willing to do so, then an independent advocate must be appointed. A friend or family member is not appropriate to facilitate the person’s involvement if the person has capacity to decide who they wish to support them and chooses not to be supported by that individual. If the person lacks such capacity, then the local authority must decide on the suitability of the friend or family member to act in the person’s best interests. The role of the independent advocate is to:

• support and represent the person to facilitate their involvement in decision-making in the care planning process
• assist the person in communicating their wishes, feelings, value and aspirations where possible
• to challenge the local authority’s decisions if necessary to represent the person’s wishes or to promote the person’s wellbeing and rights to security, liberty and family life

Minimising and authorising deprivation of liberty (DOL) for people who lack capacity

10.67 In line with the least restrictive principle in the MCA, local authorities and others drawing up plans must minimise planned restrictions and restraints on the person as much as possible. Sections 5 and 6 of the MCA provides legal protection for acts of restraint only if the act is necessary to prevent harm to the person, a proportionate response to the likelihood of the person suffering harm and the seriousness of that harm, and in the person’s best interests. Planned restrictions and restraints must be documented and reported to a social worker to agree. Disagreements should be resolved through formal Best Interests meetings, involving a wide range of people, including family members and/or an advocate to support and represent the person.

10.68 However, if the degree and intensity of restrictions and restraints are so significant that they amount to a deprivation of liberty, this must be authorised under the Deprivation of Liberty Safeguards (DOLS) under the MCA.

10.69 Developing effective person-centred processes for planning in line with the guidance and the Act in general may in most cases avoid circumstances where a deprivation of liberty will arise.

10.70 The difference between a deprivation of liberty and restraint is one of degree, intensity and duration, not necessarily nature or substance. The Supreme Court has clarified that there is a deprivation of liberty for the purposes of Article 5 of the European Convention on Human Rights in the following circumstances: the person is under continuous supervision and control and is not free to leave, and the person lacks capacity to consent to those arrangements. ^{[footnote 38]} The precise scope of the term ‘deprivation of liberty’ is not fixed. It develops over time in accordance with case law.

10.71 In DOLS cases, MCA/DOLS staff and the independent advocate must go through the following steps when conducting the care planning process:

• familiarise themselves with the provisions of the MCA, particularly the 5 principles and specifically the ‘least restrictive’ principle
• when designing and implementing new care and support plans for people lacking capacity, be alert to any restrictions and restraint which may be a degree or intensity that means a person is being, or is likely to be, deprived of their liberty (following the revised test supplied by the Supreme Court)
• where a potential deprivation of liberty is identified at the planning or commissioning care stage, a full exploration of the alternative ways of providing the care and/or treatment should be undertaken, in order to identify any less restrictive ways of providing that care which will avoid a deprivation of liberty
• where the plan for an individual lacking capacity will unavoidably result in a deprivation of liberty judged to be in the person’s best interests, this must be authorised before being implemented

10.72 If the person will be accommodated in a hospital or care home, the local authority can issue a deprivation of liberty authorisation under Schedule 1A to the MCA (DOL authorisation). If the person will be accommodated in other settings, a Court of Protection Order under the MCA to authorise the deprivation of liberty is needed. If the independent advocate is concerned that there is a risk of deprivation of liberty which has not been authorised, the advocate should raise this with the local authority. The advocate may make an application to the Court of Protection (with the Court’s permission) if they are dissatisfied with the local authority’s response.

Combining plans

10.73 Local authorities should not develop plans in isolation from other plans (such as plans of carers or family members, or Education, Health and Care plans) and should have regard to all of the person’s needs and outcomes when developing a plan, rather than just their care and support needs. ^{[footnote 39]}

10.74 The local authority should attempt to establish where other plans are present, or are being conducted and seek to combine plans, if appropriate. This should be considered early on in the planning process (at the same time as considering the person’s needs and how they can be met in a holistic way) to ensure that the package of care and support is developed in a way that fits with what support is already being received or developed. For example, this may be where the plan can be combined with a plan being developed to meet other needs, or where a plan might usefully be combined with that of a carer, or family member. In all circumstances, the plan should only be combined if all parties to whom it is relevant agree and understand the implications of sharing data and information. It is the responsibility of the local authority to obtain consent from all parties involved, and the combination of plans should aim to maximize outcomes for all involved.

10.75 Where one of the plans to be combined is for a child (below 18 years old), the child must have capacity to agree to the combination, or if lacking capacity, the local authority must be satisfied that the combination of plans would be in the child’s best interests. Often it will be; but where there is a conflict of interest (for example a parent does not wish to support their 17 year old daughter’s wish for greater independence) it may not be (see chapter 16 on transition to adult care and support).

10.76 The local authority may be undertaking care and or support planning for 2 people in the same household who require independent advocacy to facilitate their involvement. If both people have the capacity to consent to having the same advocate, and the advocate and the local authority both consider there is no conflict of interest, then the same advocate may support and represent the 2 people. If either person lacks the capacity to consent to having the same advocate, the advocate and local authority must both consider that using the same advocate would not raise a conflict of interest and would be in the best interests of both persons (see chapter 7).

10.77 Consideration should also be given to how plans could be combined where budgets are pooled, either with people in the same household, or between members of a community with similar care needs where this is appropriate and all parties agree (see chapter 11 on personal budgets). Pooling arrangements should not be restricted to individuals using the same provider. Networks of pooling arrangements should be encouraged to bring groups of people together in a more effective manner.

10.78 Where it has been agreed to combine the plan with plans relating to other people, it is important that the individual aspects of each person’s plan are not lost in the process of combining plans. The combined plan should reflect the individual needs and circumstance for each person involved, as well as any areas where a joint approach has been agreed to meet needs in a more effective way.

10.79 One key area where plans can be combined cases where the person is receiving both local authority care and support and NHS health care is an example would be a person with mental disorder who meets the criteria for care and support under the multi-agency Care Programme Approach. The introduction of personal health budgets in health, similar to personal budgets in social care, provides a powerful tool to enable integrated health and care provision which focuses on what matters most to the person. Local authorities should provide information to the person of the benefits of combining health and social care support, and seek to work with health colleagues to combine health and care plans wherever possible.

10.80 In combining plans, whether among people or organisations (such as health, education or housing), it is vital to avoid duplicating process or introducing multiple monitoring regimes. Information sharing should be rapid and seek to minimise bureaucracy. Local authorities should work alongside health and other professionals (such as housing) where plans are combined to establish a ‘lead’ organisation who undertakes monitoring and assurance of the combined plan (this may also involve appointing a lead professional and detailing this in the plan so the person knows who to contact when plans are combined). Particular consideration should be given to ensuring that processes are aligned, coherent and streamlined, to avoid confusing the person with different systems (see Chapter 14 on integration and cooperation).

Sign-off and assurance

10.81 The local authority must take all reasonable steps to agree with the person the manner in which the plan details how needs will be met, before the authority signs off the plan. Therefore, it should not introduce measures that place any undue burden on the person, especially where the person or third party is preparing the plan in conjunction with the local authority. The local authority should therefore avoid developing processes that undermine the joint preparation of plans, such as excessive quality control. For example, a local authority may have arrangements or contract with outside organisations/individuals to provide peer support for planning. If so, an important part of this contract should be around having agreement as to non-restrictive approaches that enhance the quality of plans and the local authority’s trust in the detail as well as removing issues that can cause delay and problems.

10.82 The local authority’s role where the person or third-party are undertaking the preparation of the plan jointly with the local authority includes overseeing and providing guidance for the completion of the plan; and ensuring that the plan sufficiently meets needs, is appropriate and represents the best balance between value for money and maximisation of outcomes for the person. For example, this may involve providing materials and approaches to support people jointly preparing the plan with the local authority. Where the local authority is preparing the plan on behalf of the person, or delegating this to a third-party to do so, the best interests of the person must be reflected throughout.

10.83 The local authority must take all reasonable steps to reach agreement with the person for whom the plan is being prepared. Wherever possible, local authority sign-off should occur when the person, any third party involved in the preparation of the plan and the local authority have agreed on the factors within the plan, including the final personal budget amount (which may have been subject to change during the planning process), and how the needs in question will be met. This is a key part of the planning process and the agreement should be recorded and a copy placed within the plan. Where an independent advocate has been involved, they should not be asked to sign off the plan – this is the responsibility of the local authority.

10.84 While there is no defined timescale for the completion of the care and support planning process, the plan should be completed in a timely fashion, proportionate to the needs to be met. Local authorities must ensure that sufficient time is taken to ensure the plan is appropriate to meet the needs in question, and is agreed by the person the plan is intended for. The planning process should not unduly delay needs being met.

10.85 Due regard should be taken to the use of approval panels in both the timeliness and bureaucracy of the planning and sign-off process. In some cases, panels may be an appropriate governance mechanism to sign-off large or unique personal budget allocations and/or plans. Where used, panels should be appropriately skilled and trained, and local authorities should refrain from creating or using panels that seek to amend planning decisions, micro-manage the planning process or are in place purely for financial reasons. Local authorities should consider how to delegate responsibility to their staff to ensure sign-off takes place at the most appropriate level. In cases or circumstances where a panel is to be used, and where an expert assessor has been involved in the care and support journey, the same person or another person with similar expertise should be part of the panel to ensure decisions take into account complex or specialist issues.

10.86 In the event that the plan cannot be agreed with the person, or any other person involved, the local authority should state the reasons for this and the steps which must be taken to ensure that the plan is signed-off. This may require going back to earlier elements of the planning process. People must not be left without support while a dispute is resolved. If a dispute still remains, and the local authority feels that it has taken all reasonable steps to address the situation, it should direct the person to the local complaints procedure. However, by conducting person-centred planning and ensuring genuine involvement throughout, this situation should be avoided.

10.87 Upon completion of the plan, the local authority must give a copy of the final plan which should be in a format that is accessible to the person for whom the plan is intended, any other person they request to receive a copy, and their independent advocate if they have one and the person agrees. This should not restrict local authorities from making the draft plan available throughout the planning process; indeed in cases where a person is preparing the plan in conjunction with the local authority, the plan should be in their possession. Consideration should also be given to sharing key points of the final plan with other professionals and supporters, with the person’s consent (for example, as part of the person’s health record), or sharing the plan in the best interests of a person who lacks capacity to decide on this matter.

Protecting property of adults being cared for away from home

10.88 Local authorities must take all reasonable steps to protect the moveable property of an adult with care and support needs who is being cared for away from home, in a hospital or in accommodation such as a care home, and who cannot arrange to protect their property themselves; this could include their pets as well as their personal property (for example, private possessions and furniture). Local authorities must act where it believes that if it does not take action there is a risk of moveable property being lost or damaged.

10.89 For example, protecting property may include arranging for pets to be looked after when securing premises for someone who is having their care and support needs provided away from home in a care home or hospital, and who has not been able to make other arrangements for the care of their home or pets.

10.90 In order to protect moveable property in these circumstances the local authority may enter the property, at reasonable times, with the adult’s consent; but reasonable prior notice to enter should be given. If the adult lacks the capacity to give consent to the local authority entering the property, consent should be sought from a person authorised under the Mental Capacity Act 2005 to give consent on the adult’s behalf. This might be:

• an attorney (also known as a donee with lasting power of attorney) that is someone appointed under the Mental Capacity Act 2005 who has the legal right to make decisions (for example, decisions about their care and support) within the scope of their authority on behalf of the person (the donor) who made the power of attorney
• a deputy (also known as a court-appointed deputy) that is a person appointed by the Court of Protection under the Mental Capacity Act 2005 to take specified decisions on behalf of someone who lacks capacity to take those decisions themselves
• the Court of Protection

10.91 If the adult in question lacks capacity and no other person has been authorised to act on their behalf, then the local authority must act in the best interests of the adult in accordance with section 4 of the Mental Capacity Act 2005.

10.92 If a third party tries to stop an authorised entry into the home then they will be committing an offence, unless they can give a good reason for why they are obstructing the local authority in protecting the adult’s property. Committing such an offence could, on conviction by a Magistrates’ Court, lead to the person being fined up to a maximum fine not exceeding level 4 on the standard scale. If a local authority intends to enter a home then it must give written authorisation to an officer of the council and that person must be able to produce it if asked for.

10.93 The local authority has no power to apply for a warrant to carry out their duties to protect property. The enforcement power is prosecution for unreasonable obstruction. However, if the Court decides the obstruction is reasonable then the local authority would have no further power to force entry.

10.94 This duty on the local authority lasts until the adult in question returns home or makes their own arrangements for the protection of property or until there is no other danger of loss or damage to property; whichever happens first. Often a one off event is required such as the re-homing of pets or ensuring that the property is secured. However, if costs are incurred or if there are ongoing costs the local authority can recover any reasonable expenses they incur in protecting property under this duty from the adult whose property they are protecting.

Links to external resources

• Care and Support Planning Guide
• Delivering Care and Support Planning Guide (PDF, 2.59MB)
• Essential criteria of support planning
• Good practice in support planning and brokerage, PPF, 2008
• Peer support and personalisation
• Planning together – peer support and self-directed support
• Support planning and brokerage with older people and people with mental health difficulties
• Rethinking support planning – ideas for an alternative approach
• Empower and enable – a people led approach to support planning
• Individual Service Funds and contracting for flexible support (PDF, 2.26MB)
• Using Individual Service Funds to deliver personalised care and support
• Personal health Budget Toolkit
• Employing your own care and support
• A toolkit to help you employ your own personal assistants
• The Common Core Principles to Self Care
• Personal budgets and mental health
• PHB Toolkit:Implementing effective care planning
• Carers’ rights
• Involve Me: involving people with profound and multiple learning disabilities in decision making
• At a glance 42: Personalisation briefing: Implications for lesbian, gay, bisexual and transgendered (LGBT) people
• Personalisation through person-centre planning

11. Personal budgets

This chapter provides guidance on Section 26 of the Care Act 2014 and the Care and Support (Personal Budget Exclusion of Costs) Regulations 2014, including:

• the personal budget
• elements of the personal budget
• elements of care and support that are excluded from the personal budget
• calculating the personal budget
• agreeing the final budget
• use of the personal budget
• use of a carer’s personal budget
• carers’ personal budgets where the adult being cared for does not have eligible needs
• appeals/disputes

11.1 Personal budgets are a key part of the government’s aspirations for a person-centred care and support system. Independent research shows that where implemented well, personal budgets can improve outcomes and deliver better value for money. ^{[footnote 40] [footnote 41] [footnote 42] [footnote 43]}

11.2 The Act places personal budgets into law for the first time, making them the norm for people with care and support needs.

11.3 The personal budget is the mechanism that, in conjunction with the care and support plan, or support plan, enables the person, and their advocate if they have one, to exercise greater choice and take control over how their care and support needs are met. It means:

• knowing, before care and support planning begins, an estimate of how much money will be available to meet a person’s assessed needs and, with the final personal budget, having clear information about the total amount of the budget, including proportion the local authority will pay, and what amount (if any) the person will pay
• being able to choose from a range of options for how the money is managed, including direct payments, the local authority managing the budget and a provider or third party managing the budget on the individual’s behalf (an individual service fund), or a combination of these approaches
• having a choice over who is involved in developing the care and support plan for how the personal budget will be spent, including from family or friends
• having greater choice and control over the way the personal budget is used to purchase care and support, and from whom

11.4 It is vital that the process used to establish the personal budget is transparent so that people are clear how their budget was calculated, and the method used is robust so that people have confidence that the personal budget allocation is correct and therefore sufficient to meet their care and support needs. The allocation of a clear upfront indicative (or ‘ball-park’) allocation at the start of the planning process will help people to develop the plan and make appropriate choices over how their needs are met.

11.5 The process of allocating the personal budget should be completed in a timely manner, proportionate to the needs to be met. At all times the person should be informed where they are in the care planning process, what will happen next and the likely timeframes.

11.6 This chapter applies to people in need of care and support and carers equally, unless specifically stated.

The personal budget

11.7 Everyone whose needs are met by the local authority, whether those needs are eligible, or if the authority has chosen to meet other needs, must receive a personal budget as part of the care and support plan, or support plan. The personal budget is an important tool that gives the person clear information regarding the money that has been allocated to meet the needs identified in the assessment and recorded in the plan. An indicative amount should be shared with the person, and anybody else involved, at the start of care and support planning, with the final amount of the personal budget confirmed through this process. The detail of how the personal budget will be used is set out in the care and support plan, or support plan. At all times, the wishes of the person must be considered and respected. For example, the personal budget should not assume that people are forced to accept specific care options, such as moving into care homes, against their will because this is perceived to be the cheapest option.

11.8 This allows the person, and anybody else the person wishes, to make informed decisions about how to meet their care and support needs. The person can choose for the personal budget allocation to remain with the local authority to arrange care and support on the person’s behalf, and in line with their wishes. Alternatively, if available locally, it can be placed with a third-party provider on the same basis, often called an individual service fund (ISF). Where an ISF-type arrangement is not available locally, the local authority should explore arrangements to develop this offer, and should be receptive to requests from personal budget recipients to create these arrangements with specified providers.

11.9 There may also be cases where a person prefers to use a mixed package of care and support. For example, this may be a direct payment to the person for some of their needs, with the remainder of the personal budget used to meet needs via local authority or third-party provision, or any combination of the above. The method of allocating the personal budget should be decided and agreed during the care and support planning process (see chapter 10). It is important that these arrangements can be subsequently adjusted if the person wishes this, with the minimum of procedure. The process for allocating and agreeing the personal budget via the planning process should be as straightforward and as timely as possible so that the person can access the budget without significant delay.

Elements of the personal budget

11.10 The personal budget must always be an amount sufficient to meet the person’s care and support needs, and must include the cost to the local authority of meeting the person’s needs which the local authority is under a duty to meet, or has exercised its power to do so. This overall cost must then be broken down into the amount the person must pay, following the financial assessment, and the remainder of the budget that the authority will pay.

11.11 The personal budget may also set out other amounts of public money that the person is receiving, such as money provided through a personal health budget. Local authorities should consider requests from individuals to present their personal budget in this way. Integrated health and care, and integration of other aspects of public support are the long-term vision of the government. This will provide the individual with a seamless experience, and can help to remove unnecessary bureaucracy and duplication that may exist where a person’s needs are met through money from multiple funding streams.

11.12 Local authorities must carry out their care and support responsibilities with a view to promoting integration with health and other related services (such as housing), and therefore should take a lead in driving the integration of support services for their population. For example, this may involve agreeing with partner organisations how to integrate budgets and to what extent, and the establishment of a lead organisation that agrees to oversee monitoring and assurance of all budgets the person is receiving.

11.13 Where a local authority is meeting the eligible needs of a person whose financial resources are above the financial limit, but who has requested the local authority meet their needs, the local authority may make a charge for putting in place the necessary arrangements to meet needs (see chapter 8 on charging and financial assessment). Where this occurs, the local authority should consider how best to set this information out to the person, in a format accessible to them. This fee is not part of the personal budget, since it does not relate directly to meeting needs, but it may be presented alongside the budget to help the person understand the total charges to be paid. For example, a local authority may wish to specify this in both the plan and the personal budget for the person so all parties are clear on how costs are allocated.

11.14 Similarly, there will be cases where a person or a third party on their behalf is making an additional payment (or a ‘top-up’) in order to be able to secure the care and support of their choice, where this costs more than the local authority would pay for such a type of care. In these cases, the additional payment does not form part of the personal budget, since the budget must reflect the costs to the local authority of meeting the needs. However, the local authority should consider how best to present this information to the individual, so that the total amount of charges paid is clear, and the link to the personal budget amount is understood.

Elements of care and support that are excluded from the personal budget

11.15 Regulations set out the cases or circumstances where the costs of meeting the needs of care and support do not have to be incorporated into the personal budget. Because both the care and support plan and personal budget are mechanisms to enable people to have greater choice and control over their care and support, there are not many instances where this exclusion will apply.

11.16 The Care and Support (Personal Budget Exclusion of Costs) Regulations 2014 set out that the provision of intermediate care and reablement services, for which the local authority cannot or chooses not to make a charge ^{[footnote 44]} must be excluded from the personal budget. This will mean that where either intermediate care or reablement is being provided to meet needs (for example, under section 18, 19 or 20 of the Act) the cost of this must not be included in the personal budget.

11.17 Intermediate care services are usually provided to patients, often older people, after leaving hospital or when they are at risk of being sent to hospital. The services are a link between places such as hospitals and people’s homes, and between different areas of the health and social care system – community services, hospitals, GPs and social care. ‘Reablement’ is a particular type of intermediate care, which has a stronger focus on helping the person to regain skills and capabilities to reduce their needs, in particular through the use of therapy or minor adaptations. There is a tendency for the terms ‘reablement’, ‘rehabilitation’ and ‘intermediate care’ to be used interchangeably. The National Audit of Intermediate Care categorises 4 types of intermediate care: crisis response – services providing short-term care (up to 48 hours); home-based intermediate care – services provided to people in their own homes by a team with different specialities but mainly health professionals such as nurses and therapists; bed-based intermediate care – services delivered away from home, for example, in a community hospital; and reablement – services to help people live independently, provided in the person’s own home by a team of mainly social care professionals (see chapter 2 – preventing, reducing or delaying needs).

11.18 Three of the 4 types of intermediate care have historically been clinician-led and provided by health staff, with reablement being provided by local authorities. However, these are not concrete, mutually-exclusive categories – and, furthermore, with greater integration and co-operation between health and local authorities, there should be greater use of qualified staff from health and social care working together to provide intermediate care.

11.19 Local authorities should not include additional elements that would not normally be classified as intermediate care or reablement into this exclusion. Indeed, the Act restricts the regulations into specifying only care and support which the local authority cannot charge for, or chooses not to charge for. This ensures that long-term care and support will always be part of the personal budget, and in future, count towards the cap on care costs. Also, broader rehabilitation services could be included to an individual to meet identified health needs as part of a joint personal budget across health and social care.

11.20 Intermediate care/reablement should usually be provided as a free, universal service under section 2 of the Act, and therefore would not contribute to the personal budget amount. However, in some circumstances, a local authority may choose to combine either service with aspects of care and support to meet eligible or ongoing needs, which would require a personal budget to be developed. Removing the cost of provision of intermediate care/reablement from the personal budget in these scenarios ensures that the allocation of both services is applied uniformly across all local authorities, and in future people progress towards the cap on care costs in a fair and consistent way.

11.21 In cases where intermediate care/ reablement is provided to meet needs under section 18 or 20(1) or under section 19(1) or 20(6), either in isolation or combined with longer-term care and support, the plan should describe what the package consists of and how long it will last. This will help the person understand what is being provided to meet their needs. However, the person should not receive a personal budget, unless there are other forms of care and support being provided under these sections. In these cases, the personal budget amount must not include the cost of intermediate care/reablement which are provided free of charge.

Calculating the personal budget

11.22 It is important to have a consistent method for calculating personal budgets that provides an early indication of the appropriate amount to meet the identified needs to be used at the beginning of the planning process. Local authorities should ensure that the method used for calculating the personal budget produces equitable outcomes to ensure fairness in care and support packages regardless of the environment in which care and support takes place, for example, in a care home or someone’s own home. Local authorities should not have arbitrary ceilings to personal budgets that result in people being forced to accept to move into care homes against their will.

11.23 There are many variations of systems used to arrive at personal budget amounts, ranging from complex algorithmic-based resource allocation systems (RAS), to more ‘ready-reckoner’ approaches. Complex RAS models of allocation may not work for all client groups, especially where people have multiple complex needs, or where needs are comparatively costly to meet, such as in the case of deaf-blind people. It is important that these factors are taken into account, and that a ‘one size fits all’ approach to resource allocation is not taken. If a RAS model is being used, local authorities should consider alternative approaches where the process may be more suitable to particular client groups to ensure that the personal budget is an appropriate amount to meet needs.

11.24 Regardless of the process used, the most important principles in setting the personal budget are transparency, timeliness and sufficiency. This will ensure that the person, their carer, and their independent advocate if they have one, is fully aware of how their budget was calculated, that they know the amount at a stage which enables them to effectively engage in care and support planning, and that they can have confidence that the amount includes all relevant costs that will be sufficient to meet their identified needs in the way set out in the plan. The local authority should also explain that the initial indicative allowance can be increased or decreased depending on the decisions made during the development of the plan. This should prevent disputes from arising, but it must also be possible for the person, carer or independent advocate (on the person’s behalf) to challenge the local authority on the sufficiency of the final amount. These principles apply to both the indicative upfront budget and the final signed=off personal budget that forms part of the care and support plan.

Transparency

Authorities should make their allocation processes publicly available as part of their general information offer, or ideally provide this on a bespoke basis for each person the authority is supporting in a format accessible to them. This will ensure that people fully understand how the personal budget has been calculated, both in the indicative amount and the final personal budget allocation. Where a complex RAS process is used, local authorities should pay particular consideration to how they will meet this transparency principle, to ensure people are clear how the personal budget was derived.

Timeliness

It is crucial when calculating the personal budget to arrive at an upfront allocation which can be used to inform the start of the care and support planning process. This ‘indicative budget’ will enable the person to plan how the needs are met. After refinement during the planning process, this indicative amount is then adjusted to be the amount that is sufficient to meet the needs which the local authority is required to meet under section 18 or 20(1), or decides to meet under section 19(1) or (2) or 20(6). This adjusted amount then forms the personal budget recorded in the care plan.

Sufficiency

The amount that the local authority calculates as the personal budget must be sufficient to meet the person’s needs which the local authority is required to meet under section 18 or 20(1), or decides to meet under section 19(1) or (2) or 20(6) and must also take into account the reasonable preferences to meet needs as detailed in the care and support plan, or support plan.

11.25 The Act states the personal budget must be an amount that is the cost to the local authority of meeting the person’s needs. In establishing the ‘cost to the local authority’, consideration should therefore be given to local market intelligence and costs of local quality provision to ensure that the personal budget reflects local market conditions and that appropriate care that meets needs can be obtained for the amount specified in the budget. To further aid the transparency principle, these cost assumptions should be shared with the person so they are aware of how their personal budget was established. Consideration should also be given as to whether the personal budget is sufficient where needs will be met via direct payments, especially around any other costs that may be required to meet needs or ensure people are complying with legal requirements associated with becoming an employer (see chapter 12). There may be concern that the ‘cost to the local authority’ results in the direct payment being a lesser amount than is required to purchase care and support from the local market due to local authority bulk purchasing and block contract arrangements. However, by basing the personal budget on the cost of quality local provision, this concern should be allayed.

11.26 However, a request for needs to be met via a direct payment does not mean that there is no limit on the amount attributed to the personal budget. There may be cases where it is more appropriate to meet needs via directly-provided care and support, rather than by making a direct payment. For example, where there is no local market for a particular kind of care and support that the person wishes to use the direct payment for, except for services provided by the local authority. It may also be the case where the costs of an alternate provider arranged via a direct payment would be more than the for what the local authority would be able to arrange the same support, whilst achieving the same outcomes for the individual.

11.27 In all circumstances, consideration should be given to the expected outcomes of each potential delivery route. It may be that by raising the personal budget to allow a direct payment from a particular provider, it is expected to deliver much better outcomes than local authority delivered care and support, or there may be other dynamics such as the preferred option reducing the need for travel costs, or out of hours care. In addition, efficiencies to the local authority (for example through an individual making their own arrangements) should also be considered. Decisions should therefore be based on outcomes and value for money, rather than purely financially motivated.

11.28 In cases where making a direct payment is a more expensive option to meet needs, the care plan should be reviewed to ensure that it is accurate and that the personal budget allocation is correct. The authority should work with the person, their carer and independent advocate (if there is one) to agree on how best to meet their care and support needs. It may be that the person can take a mixture of direct payment and local authority-arranged care and support, or the local authority can work with the person to discuss alternate uses for the personal budget. Essentially, these discussions will take place during the planning process and local authorities should ensure that their staff are appropriately trained to support personalised care and support, and to facilitate decision-making.

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Example: Costs of direct payments 1

Andrew has chosen to meet his needs by receiving care and support from a PA. The local authority has a block contract with an agency which has been providing support to Andrew twice per week. Andrew would now like more flexibility in the times at which he receives support in order to better meet his needs by allowing him to undertake other activities and consider employment.

He therefore requests a direct payment so that he can make his own arrangements with another agency, which is happy to arrange a much more flexible and personalised service, providing Andrew with the same care worker on each occasion, and at a time that works best for him.

The cost to the local authority of the block contracted services is £13.50 per hour. However, the more flexible support costs £18 per hour (inclusive of other employment costs). The local authority therefore increases Andrew’s direct payment from £67.50 to £90 per week to allow him to continue to receive the care he requires. The solution through a direct payment delivers better outcomes for Andrew and therefore the additional cost is reasonable and seen as value for money as it may delay future needs developing.

The local authority also agrees it is more efficient for them to allow Andrew to arrange and commission the hours he wants to receive support and handle the invoicing himself.

Example: Costs of direct payments 2

Following George’s assessment of needs, the local authority work out an indicative personal budget of £135 per week, based on their block contract rate of £13.50 per hour as an indication of the potential costs to meet his needs.

During care planning, George states that he has a neighbour that has recently trained to become a personal assistant, and George indicates a preference to use a direct payment to employ the neighbour instead of an arranged service.

The local authority is satisfied that George will be able to manage the direct payment, and that he understands his responsibilities as an employer. George wants to pay the PA above the living wage and has provisionally agreed a hourly rate of £9 per hour.

The local authority agrees to this as George agrees that it will meet his needs and outcomes. The final personal budget is adjusted to £110 per week which factors in the new hourly rate, plus an additional allowance for employment responsibilities (PAYE, NI, insurance)

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Use of the personal budget

11.29 The person should have the maximum possible range of options for managing the personal budget, including how it is spent and how it is utilised. Directing spend is as important for those choosing the council-managed option or individual service fund as for those choosing direct payments. Evidence suggests that people using council-managed personal budgets are currently not achieving the same level of outcomes as those using direct payments, and in too many cases do not even know they have been allocated a personal budget.

11.30 There are 3 main ways in which a personal budget can be deployed:

• as a managed account held by the local authority with support provided in line with the persons wishes
• as a managed account held by a third party (often called an individual service fund or ISF) with support provided in line with the persons wishes ^{[footnote 45]}
• as a direct payment

11.31 In addition, a person may choose a ‘mixed package’ that includes elements of some or all 3 of the approaches above. Local authorities must ensure that whatever way the personal budget is used, the decision is recorded in the plan and the person is given as much flexibility and choice as is reasonably practicable in how their needs are met. The mixed package approach can be a useful option for people who are moving to direct payments for the first time. This allows a phased introduction of the direct payment, giving the person time to adapt to the direct payment arrangements.

11.32 Where ISF approaches to personal budget management are available locally, the local authority should provide people with information and advice on how the ISF arrangement works and any contractual requirements, how the provider(s) will manage the budget on behalf of the person, and advice on what to do if a dispute arises. Consideration should be given to using real local examples that illustrate how other people have benefitted from ISF arrangements.

11.33 Where there are no ISF arrangements available locally, the local authority should consider establishing this as an offer for people. Additionally, the local authority should reasonably consider any request from a person for an ISF arrangement with a specified provider.

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Examples: Using individual service funds

Sally really enjoys dancing and night clubs and she needs support for this. Sally’s ISF arrangement with her provider has given her the flexibility to employ staff that also like to do this, and they are paid time and a half after 11:00pm. The ISF arrangement also allows Sally to convert ‘standard hours’ into ‘enhanced hours’, for example, 6 standard hours equals 4 enhanced hours. Sally can plan late nights out knowing what it ‘costs’ from her allocation of 24 standard hours support, which is calculated from her personal budget.

Brian’s ISF arrangement with his provider allows him to save up and then convert the hours of his support into money to purchase personal trainer time at a local gym. In addition to promoting wellbeing in the areas of emotional and social wellbeing and personal relationships, these arrangements also demonstrate the local authority’s regard for the importance of beginning with the assumption that an individual is best-placed to judge their own wellbeing.

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11.34 Local authorities should also give consideration to how choice could be increased by people pooling their budgets together. For example, this may include pooling budgets of people living in the same household such as an adult and carer, or pooling budgets of people within a community with similar care and support needs, or aspirations. Pooling budgets in circumstances such as this may deliver increased choice, especially where managed budgets are concerned. Developing networks of ‘budget poolers’ could help create dynamic groups of people working together to meet needs.

11.35 Evidence suggests that in most cases people need to know the amount of their budget, be able to choose how it is managed, and have maximum flexibility in how it is used to achieve the best outcomes. Therefore the process and practice for personal budgets should follow the key principles of self-directed support. Local authorities should aim to develop a range of means to enable anyone to make good use of direct payments and where people choose other options, should ensure local practice that maximises choice and control (for example use of Individual Service Funds). Local authorities should also take care not to inadvertently limit options and choices. For example ‘pre-paid cards’ can be a good option for some people using direct payments, but must not be used to constrain choice or be only available for use with a restricted list of providers.

Use of a carer’s personal budget

11.36 Specific consideration should be given to how a personal budget will be used by carers. The Act specifies that a carer’s need for support can be met by providing care to the person they care for. However, decisions on for whom a particular service is to be provided may affect issues such as whether the service is chargeable, and who is liable to pay any charges. It is therefore important that it is clear to all individuals involved whose needs are intended to be met by a particular type of support, to whom the support will be provided directly, and therefore who may pay any charges due. Where a service is provided directly to the adult needing care, even though it is to meet the carer’s needs, then that adult would be liable to pay any charge, and must agree to doing so. Section 14 of the Act makes clear that where the needs are met by providing care and support direct to the adult needing care, the charge may not be imposed on the carer.

11.37 Decisions on which services are provided to meet carers’ needs, and which are provided to meet the needs of the adult for whom they care, will therefore impact on which individual’s personal budget includes the costs of meeting those needs. Local authorities should make this decision as part of the care planning process, in discussion with the individuals concerned, and should consider whether joint plans (and therefore joint personal budgets) for the 2 individuals may be of benefit.

11.38 Local authorities should consider how to align personal budgets where they are meeting the needs of both the carer and the adult needing care concurrently. Where an adult has eligible needs for care and support, and has a personal budget and care and support plan in their own right, and the carer’s needs can be met, in part or in full, by the provision of care and support to that person needing care, then this kind of provision should be incorporated into the plan and personal budget of the person with care needs, as well as being detailed in a care and support plan for the carer.

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Examples: Flexible use of a carer’s personal budget

Conor has been caring for his wife, who is in a wheelchair with ME and arthritis, for the last 9 years. He does all the cooking, driving and general household duties for their household. Conor received a personal budget which he requested in the form of a direct payment from his local authority for a laptop to enable him to be in more regular contact through Skype with family in the US. This now enables Conor to stay connected with family he cannot afford to fly and see. This family support helps Connor with his ongoing caring role.

Divya has 4 young children and provides care for her father who is nearing the end of his life. Her father receives a direct payment, which he used to pay a family member for a period of time to give his daughter a break from her caring role. Divya received a carers’ direct payment, which she uses for her children to attend summer play schemes so that she get some free time to meet with friends and socialise when the family member providers care to her father. This gives Divya regular breaks from caring which are important to the family unit.

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11.39 ‘Replacement care’ may be needed to enable a carer to look after their own health and wellbeing alongside caring responsibilities, and to take a break from caring. For example, this may enable them to attend their own health appointments, or go shopping and pursue other recreational activities. It might be that regular replacement care overnight is needed so that the carer can catch up on their own sleep. In other circumstances, longer periods of replacement care may be needed, for example to enable carers to have a longer break from caring responsibilities or to balance caring with education or paid employment. In these circumstances, where the form of the replacement care is essentially a homecare service provided to the adult needing care that enables the carer to take a break, it should be considered a service provided to the cared-for person, and thus must be charged to them, not the carer.

11.40 The carer’s personal budget must be an amount that enables the carer to meet their needs to continue to fulfil their caring role, and takes into account the outcomes that the carer wishes to achieve in their day to day life. This includes their wishes and/or aspirations concerning paid employment, education, training or recreation if the provision of support can contribute to the achievement of those outcomes. The manner in which the personal budget will be used to meet the carer’s needs should be agreed as part of the planning process.

11.41 Local authorities must have regard to the wellbeing principle of the Act, as it may be the case that the carer needs a break from caring responsibilities to look after their own physical/mental health and emotional wellbeing, social and economic wellbeing and to spend time with other members of the family and personal relationships. Whether or not there is a need for replacement care, carers may need support to help them to look after their own wellbeing. This may be, for example, a course of relaxation classes, training on stress management, gym or leisure centre membership, adult learning, development of new work skills or refreshing existing skills (so they might be able to stay in paid employment alongside caring or take up return to paid work), pursuit of hobbies such as the purchase of a garden shed, or purchase of a laptop so they can stay in touch with family and friends.

Carers’ personal budgets where the adult being cared for does not have eligible needs

11.42 The Act makes clear that the local authority is able to meet the carer’s needs by providing a service directly to the adult needing care. However, there may be instances where the adult being cared for does not have eligible needs, so does not have their own personal budget or care plan. In these cases, the carer must still receive a support plan which covers their needs, and how they will be met. This would specify how the carer’s needs are going to be met (for example, via replacement care to the adult needing care), and the personal budget would be for the costs of meeting the carer’s needs.

11.43 The adult needing care would not receive a personal budget or care plan, because no matter what the service is in practice, it is designed to meet the carer’s needs. However, it is essential that the person requiring care is involved in the decision-making process and agrees with the intended course of action.

11.44 In situations such as these, the carer could request a direct payment, and use that to commission their own replacement care from an agency, rather than using an arranged service from the local authority or a third party. The local authority should take steps to ensure that the wishes of the adult requiring care are taken into account during these decisions. For example, the adult requiring care may not want to receive replacement care in this manner.

11.45 If such a type of replacement care is charged for (and it may not be), then it would be the adult needing care that would pay, not the carer, because they are the direct recipient of the service. This is in part why it is so important that the adult needing care agrees to receiving that type of care. The decisions taken by the carer and adult requiring care and charging implications should be agreed and recorded in the support plan. If a dispute arises and the person refused to pay the charge, the local authority must, as far as it is feasible, identify some other way of supporting the carer.

11.46 For the purposes of charging, the personal budget which the carer receives must specify the costs to the local authority and the costs to the adult, based on the charging guidance (see chapter 8). In this case, ‘the adult’ refers to the carer, because they are the adult whose needs are being met. However, in instances where replacement care is being provided, the carer should not be charged; if charges are due to be paid then these have to be met by the adult needing care. Any such charges would not be recorded in the personal budget, but should be set out clearly and agreed by those concerned.

Disputes

11.47 The local authority should take all reasonable steps to limit disputes regarding the personal budget allocation. This will include through effective care and support planning, and transparency in the personal budget allocation process. Additionally, many disputes may be avoided by informing people of the timescales that are likely to be involved in different stages of the process. Keeping people informed how their case is progressing may help limit the number of disputes.

11.48 Current complaints provision for care and support is set out in regulations. ^{[footnote 46]} The provisions of the regulations mean that anyone who is dissatisfied with a decision made by the local authority can make a complaint about that decision and have that complaint handled by the local authority. The local authority must make its own arrangements for dealing with complaints in accordance with the 2009 regulations.

Links to external resources

• Adult social care minimum process framework
• The seven steps to being in control of my support
• Enabling risk, ensuring safety - self-directed support and personal budgets
• Self-directed support process - what good looks like
• Making resource allocation work in a financial environment
• Keeping personal budgets personal – learning from the experiences of older people, people with mental health problems and their carers
• Financial management of personal budgets
• Personal budgets – taking stock, moving forward
• Individual Serviced Funds (ISFs) and contracting for flexible support (PDF, 2.26MB)
• Integrating personal budgets - early learning, PHB Toolkit
• Integrating personal budgets - myths and misconceptions
• Progressing personalisation – a review of personal budgets and direct payments for carers
• Making it real - making progress towards personalised, community based support
• Choice and Control for All
• Improving personal budgets for older people
• Self-directed support: reducing process, increasing choice and control
• Resource Allocation Systems (RAS) Challenge
• Paths to personalisation in mental health
• 2nd National Personal Budget Survey
• Making it real for carers

12. Direct payments

This chapter covers:

• making direct payments available
• considerations for adults with and without capacity
• administering, monitoring and reviewing direct payments
• using the direct payment
• paying family members
• short-term and long-term care in a care home
• becoming an employer
• direct payments and hospital stays
• direct payments for local authority services
• direct payments in the form of pre-payment cards
• harmonisation of direct payments
• terminating direct payments

12.1 Direct payments are monetary payments made to individuals who request to receive one to meet some or all of their eligible care and support needs. The legislative context for direct payments is set out in the Care Act, Section 117(2C) of the Mental Health Act 1983 (the 1983 Act) and the Care and Support (Direct Payments) Regulations 2014.

12.2 Direct payments have been in use in adult care and support since the mid-1990s and they remain the Government’s preferred mechanism for personalised care and support. They provide independence, choice and control by enabling people to commission their own care and support in order to meet their eligible needs. ^{[footnote 47]}

12.3 Direct payments, along with personal budgets and personalised care planning, mandated for the first time in the Care Act, provide the platform with which to deliver a modern care and support system. People should be encouraged to take ownership of their care planning, and be free to choose how their needs are met, whether through local authority or third-party provision, by direct payments, or a combination of the 3 approaches.

12.4 For direct payments to have the maximum impact, the processes involved in administering and monitoring the payment should incorporate the minimal elements to allow the local authority to fulfil its statutory responsibilities. These processes must not restrict choice or stifle innovation by requiring that the adult’s needs are met by a particular provider, and must not place undue burdens on people to provide information to the local authority. An effective monitoring process should also go beyond financial monitoring, and include aspects such as identifying wider risks and issues, for example non-payment of tax, and provision of employers’ liability insurance where this is appropriate.

12.5 The local authority also has a key role in ensuring that people are given relevant and timely information about direct payments, so that they can make a decision whether to request a payment, and, if doing so, are supported to use and manage the payment appropriately. The route to a direct payment is for a person to request one, but the local authority should support the person’s right to make this request by providing information and advice as detailed above. People must not be forced to take a direct payment against their will, but instead be informed of the choices available to them.

12.6 This chapter should be read in conjunction with the sections on care and support planning and personal budgets (see chapters 10 and 11), and applies to people in need of care and support and carers equally, unless specifically stated.

Making direct payments available

12.7 The availability of direct payments should be included in the universal information service that all local authorities are required to provide. This should set out:

• what direct payments are
• how to request one including the use of nominated and authorised persons to manage the payment
• explanation of the direct payment agreement and how the local authority will monitor the use of the direct payment
• the responsibilities involved in managing a direct payment and being an employer;
• making arrangements with social care providers
• signposting to local organisations (such as user-led organisations and micro-enterprises) and the local authority’s own internal support, who offer support to direct payment holders, and information on local providers
• case studies and evidence on how direct payments can be used locally to innovatively meet needs ^{[footnote 48]}

12.8 This will allow people to be fully aware what direct payments are and whether they are something that are of interest. In addition to this general information, authorities must also explain to people what needs could be met by direct payments during the care and support planning process.

12.9 Local authorities have a crucial role to play in promoting the use of direct payments, and enabling people to make requests to receive direct payments in an efficient way. However, the gateway to receiving a direct payment must always be through the request from the person. Local authorities must not force people to take a direct payment against their will, or allow people to be placed in a situation where the direct payment is the only way to receive personalised care and support. However, local authorities are encouraged to prompt people to consider direct payments and how they could be used to meet needs.

Steps following a request to receive direct payments

12.10 It is expected that most requests to receive direct payments will occur during the care planning stage as this is when authorities must inform the person of the needs that could be met via direct payments. However, local authorities must consider requests for direct payments made at any time, and have clear and swift processes in place to respond to the requests. For example, a person may request a direct payment before a scheduled or anticipated review. In these cases, the local authority must assess the request on the same basis as a request made during care planning. In practice, it may be convenient to consider the request at the same time as a review of the care plan. In these cases, the review should be brought forward so as not to delay the consideration of the direct payment request (see chapter 13 on reviews). The steps to follow after receiving a request for a direct payment will depend on whether the person has been assessed as having capacity to make a decision about direct payments or not, which should have taken place at the assessment of needs (see chapter 6).

Assessing capacity

The following considerations should be made when assessing capacity:

• does the person have a general understanding of what decisions they need to make and how they need to make them?
• does the person have a general understanding of the consequences of making, or not making the decision?
• is the person able to understand, retain, use and weigh up all relevant information to support the decision?
• can the person communicate the decision? (this may involve the use of a specialist or independent advocate)
• is there need to bring in additional expertise to aid the assessment?

12.11 Mental capacity is the ability to make a decision. Under the 2005 Mental Capacity Act, a person lacks capacity in relation to a matter if, at the material time, they are unable to make a decision in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.

12.12 Assessments of capacity must always be made on a case-by-case basis, in relation to the specific decision to be made. Assumptions should not be made due to the existence of a particular condition, nor on whole groups of people.

12.13 Consideration should also be given to whether capacity is constant or likely to fluctuate. Where it is clear that fluctuating capacity is a known issue, or likely to be, this should be covered in the care plan which details the steps to take where capacity fluctuates. The Care and Support (Direct Payments) Regulations 2014 allow for direct payments to continue to be made in cases of fluctuating capacity (see paras. 12.67-12.68 on terminating direct payments).

Adults with capacity

12.14 Where the local authority is satisfied that the person has capacity to make a request for direct payments to cover some or all of their care needs, it must consider each of the 4 conditions in section 31 of the Care Act. These conditions need to be met in their entirety; a failure in one would result in the request to receive a direct payment being declined. The conditions are:

• the adult has capacity to make the request, and where there is a nominated person, that person agrees to receive the payments
• the local authority is not prohibited by regulations under section 33 from meeting the adult’s needs by making direct payments to the adult or nominated person
• the local authority is satisfied that the adult or nominated person is capable of managing direct payments either by himself or herself, or with whatever help the authority thinks the adult or nominated person will be able to access
• the local authority is satisfied that making direct payments to the adult or nominated person is an appropriate way to meet the needs in question

12.15 The authority must clarify at the earliest stage possible where the request originates from. The Care Act provides a power to enable direct payments to be made to the person in need of care and support, or a nominated person acting on their behalf if the adult so requests. Where a nominated person has been requested to receive the direct payment, the authority should involve the nominated person in any appropriate stages of the care planning journey, such as the development of the care plan, as long as the person with care needs agrees to this. Where the person does not specifically request this involvement, the local authority should consider whether to encourage the person to make that request. During this process, the nominated person should receive information regarding the local authorities direct payments processes, as well as information and advice on using and managing the direct payment, so that the nominated person understands their legal obligations as the direct payment recipient to act in the best interests of the person requiring care and support (see paras. 12.48-12.51 on becoming an employer). The local authority must also satisfy itself that the nominated person meets the conditions in Section 31 of the Act.

Adults lacking capacity

12.16 In cases where the person in need of care and support has been assessed as lacking capacity to request the direct payment, an authorised person can request the direct payment on the person’s behalf. In these cases, the local authority must satisfy itself that the person meets the 5 conditions as set out in section 32 of the Care Act.

12.17 As with direct payments for people with capacity, each of these conditions must be met in their entirety. Failure to meet any of the conditions would result in the request being declined. The conditions are:

• where the person is not authorised under the Mental Capacity Act 2005 but there is at least one person who is so authorised, that person who is authorised supports the person’s request
• the local authority is not prohibited by regulations under section 33 from meeting the adult’s needs by making direct payments to the authorised person, and if regulations under that section give the local authority discretion to decide not to meet the adult’s needs by making direct payments to the authorised person, it does not exercise that discretion
• the local authority is satisfied that the authorised person will act in the adult’s best interests in arranging for the provision of the care and support for which the direct payments under this section would be used
• the local authority is satisfied that the authorised person is capable of managing direct payment by himself or herself, or with whatever help the authority thinks the authorised person will be able to access
• the local authority is satisfied that making direct payments to the authorised person is an appropriate way to meet the needs in question

Consideration of the request

12.18 After considering the suitability of the person requesting the direct payment against the appropriate conditions in the Care Act, the local authority must make a determination whether to provide a direct payment. Where accepted, the decision should be recorded in the care plan, or support plan. Where refused, the person or person making the request should be provided with written reasons that explain the decision, and be made aware of how to appeal the decision through the local complaints process.

12.19 The Care Act defines one of the conditions to be met is that the direct payment is an appropriate way to meet the needs in question (or, in respect of after-care services, an appropriate way to discharge its duty under section 117 of the 1983 Act). ^{[footnote 49]} Local authorities must not use this condition to arbitrarily decline a request for a direct payment. For example, there may be instances where a person is obliged to receive services as a condition of mental health legislation (including a community treatment order, guardianship or leave of absence from hospital under the Mental Health Act or provisions in other mental health legislation). In these cases, although the person is being obliged to receive services rather than choosing to present for services, it may still be appropriate to give the person the responsibility of meeting their needs via a direct payment, if this is what is requested. Particular consideration should be given to these cases when applying the conditions set out in the Act. In all cases, appropriateness is for local authorities to determine, although it is expected that in general, direct payments are an appropriate way to meet most care and support needs.

12.20 However, there may be cases where a direct payment is not appropriate to meet needs. The Regulations set out that direct payments cannot be made to people subject to a court order for a drug or alcohol treatment program or similar schemes (schedule 1 of the Regulations).

12.21 A further condition is that the local authority must be satisfied that the person is able to manage the direct payment by him or herself, or with whatever help or support the person will be able to access. Local authorities should therefore take all reasonable steps to provide this support to whoever may require it. To comply with this, many local authorities have contracts with voluntary or user-led organisations that provide support and advice to direct payment holders, or to people interested in receiving direct payments. This condition should not be used to deny a person from receiving a direct payment without consideration of support needs. Consideration should also be given to involving a specialist assessor in determination of support requirements, in particular if one was used earlier in the care and support process (such as assessment).

12.22 In all cases, the consideration of the request should be concluded in as timely a manner as possible. Where the request for a direct payment has been declined, the person in need of care and support, and any other person involved in the request (for example, nominated or authorised person) should (subject to Data Protection Act requirements) receive the reasons in a format that is accessible to them. This should set out which of the conditions in the Care Act have not been met, the reasons as to why they have not been met, and what the person may need to do in the future to obtain a positive decision. The consideration stage should be performed as quickly as is reasonably practicable, and the local authority must provide interim arrangements to meet care and support needs to cover the period in question.

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Case Study: Making direct payments support accessible

Abdul is a deafblind man; to communicate he prefers to use Braille, Deafblind Manual and email. He directly employs several staff through direct payments. He receives payroll support from his local direct payments support service. Abdul suggested ways to make direct payments management accessible to him. He communicates with the support service mainly via email but they also use Typetalk.

At the end of the month, Abdul emails the support service with details of the hours that his staff have worked. The support service work out any deductions from pay (such as National Insurance and Income Tax) and email him to tell him how much he should pay the staff via cheque. They then send him pay slips to be given to staff. The envelope that the payslips are sent in has 2 staples in the corner so that he knows who the letter is from. The payslips themselves are labelled in Braille so that he knows which staff to give them to.

Each quarter, the support service tells him how much he needs to pay on behalf of his employees in National Insurance and Income Tax. The service also fills in quarterly Inland Revenue paperwork. At the end of the year, the support service sends relevant information to the council, so that they are aware of how the direct payments are being spent.

Abdul has taken on only some of the responsibilities of employing people; he has delegated some tasks to the support service. Control still remains with Abdul and confidentiality is maintained by using accessible labelling. In terms of the wellbeing principle, the local authority has promoted Abdul’s control over his day-to-day life.

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12.23 Where the request has been declined, the local authority should continue the care planning process so that it can seek to agree with the person how best to meet the needs, without the use of direct payments (see chapter 10 on care and support planning).

Administering direct payments

12.24 The local authority must be satisfied that the direct payment is being used to meet the care and support needs set out in the plan, and should therefore have systems in place to proportionally monitor direct payment usage to ensure effective use of public money. The Care and Support (Direct Payments) Regulations 2014 set out that the local authority must review the making of direct payments initially within 6 months, and thereafter every 12 months, and must not require information to be provided more often and in more detail than is reasonably required for the purpose of enabling the authority to know that making direct payment is still an appropriate way of meeting the needs, and that conditions upon which it is made are met. Local authorities should not design systems that place a disproportionate reporting burden upon the individual. The reporting system should not clash with the policy intention of direct payments to encourage greater autonomy, flexibility and innovation. For example, people should not be requested to duplicate information or have onerous monitoring requirements placed upon them. Monitoring should be proportionate to the needs to be met and the care package. Thus local authorities should have regard to lowering monitoring requirements for people that have been managing direct payments without issues for a long period.

12.25 The amount of the direct payment is derived from the personal budget as set out in the care and support plan, or support plan, and thus must be an amount which is sufficient to meet the needs the local authority has a duty or power to meet. The direct payment amount will reflect whether the person is required to make any financial contributions, or is requesting a direct payment for only a part of their care and support requirements. Local authorities cannot require financial contributions for a direct payment for after care services under the MHA; these must be provided without charge.

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Example: Reduced monitoring

Gina has a stable condition and has been successfully managing her direct payment for over 2 years. The local authority therefore decides to reduce monitoring to the lowest level due to the low perceived risk (while still complying with the required review in the Act and Regulations). Gina is now considered to have the skills and experience to manage on her own unless the local authority request otherwise or information suggested otherwise comes to the attention of the local authority.

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12.26 It is ultimately for authorities to decide whether payments are made on a gross or net basis in consultation with appropriate stakeholders. However, local authorities who operate systems of providing gross direct payments should consider the benefits of moving to net payments as these reduce transaction and process costs for both the authority and the person receiving the direct payment. ^{[footnote 50]}

12.27 The local authority should have regard to whether there will be costs such as recruitment costs, Employers’ National Insurance Contributions, and any other costs by reason of the way in which the adult’s needs will be met with the direct payment. ^{[footnote 51]} If these costs will be incurred their amount must be included in the personal budget (and thus direct payment) if it is appropriate for the adult to meet the needs in a way which incurs the costs. Some local authorities include one-off payments within the direct payment to cover these factors. In addition, other authorities have commissioned support services such as brokerage, payroll and employment advice as part of their general direct payment offer.

12.28 Where a direct payment recipient is using their payment to employ a personal assistant (PA) or other staff, the local authority should ensure that there are clear plans in place of how needs will be met in the event of the PA being absent, for example due to sickness, maternity or holiday. Local authorities still have a duty to ensure needs are being met, even if the person makes their own arrangements via the direct payment, so contingencies may be needed. Where appropriate, these should be detailed in the care and support plan, or support plan.

12.29 Specific information should also be given to people about the requirements to have plans in place for redundancy payments due to circumstances such as moving home, a change in care and support needs, or the result of the death of the direct payment holder, or care recipient. If the person meets needs by directly employing someone, they will be responsible for all costs of employment including redundancy payments and this should be made clear to people as part of the information and advice process before a decision is made whether to request direct payments. The local authority must ensure that the direct payment is sufficient to meet these costs if it is appropriate for the adult to meet their needs by employing someone.

12.30 Normally, if someone dies any employment liabilities will be met by the person’s estate, but with direct payments local authorities and adults have freedom to develop their own arrangements for dealing with this issue. This could include using any unspent direct payment to contribute to any redundancy costs, having insurance in place that covers redundancy, or the local authority agreeing to cover redundancy payments through the direct payment amount.

12.31 Whatever arrangements are made it is important that the local authority and direct payment holder are both clear as to their responsibilities in this regard to avoid any disputes at a sensitive time for family and carers. Decisions made should be recorded in care plans.

12.32 Local authorities should also consider how to recover unspent direct payments if the recipient dies. For example, if someone wishes to pay an agency in advance for its services, the local authority should bear in mind that it may be difficult to recover money paid for services that were not in fact delivered. Local authorities should also consider, if the direct payment recipient does leave unspent funds to be recovered, that before their death the direct payment recipient may have incurred liabilities that should legitimately be paid for using the direct payments (for example, they received services for which payment had not been made at the time of death). Local authorities may need to consider any redundancy costs payable to personal assistants and be prepared to provide advice on how these might be met. As with other costs the personal budget must be a sufficient amount to meet the person’s needs, including the provision of any redundancy costs, if appropriate to meet needs, and subject to other arrangements that may have been made.

12.33 Local authorities should ensure all direct payment recipients are supported and given information in regards to having the correct insurance cover in place. Direct payments recipients should be given support to understand the benefits that insurance cover can provide, and the direct payment should therefore include an amount to cover the cost of employers’ liability insurance and any other insurance that is required in order that the person can meet their needs in the way specified in the care plan.

12.34 The local authority must also have regard to where the direct payment can be integrated with other forms of public funding, such as personal health budget direct payments. Where this is apparent, the local authority should take steps to work with partners to combine the payments, as long as the person and all parties agree. For example, the local authority could agree with the NHS that the social care and health direct payments are combined and that the monitoring is performed solely by one organisation, reporting to the other as appropriate. This will avoid the person having multiple bank accounts, and having to supply similar information to public bodies to account for direct payment spend, while allowing both bodies to meet their statutory responsibilities.

Using the direct payment

Paying family members

12.35 The direct payment is designed to be used flexibly and innovatively and there should be no unreasonable restriction placed on the use of the payment, as long as it is being used to meet eligible care and support needs.

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Example: Direct Payment to pay a family member for administration support

David has been using direct payments to meet his needs for some time, and has used private agencies to provide payroll and administration support, funded by a one-off annual payment as part of his personal budget allocation. David’s wife, Gill provides care for him and is increasingly becoming more hands-on in arranging multiple PAs to visit and other administrative tasks as David’s care needs have begun to fluctuate.

They jointly approach the local authority to request that Gill undertake the administration support instead of the agency as they want to take complete control of the payment and care arrangements so that they can best meet David’s fluctuating needs and ensure that appropriate care is organized.

The local authority considers that Gill would be able to manage this aspect of the payment, and jointly revises the care plan to detail the aspects of the payment, and what services Gill will undertake to the agreement of all concerned. The personal budget is also revised accordingly.

The family now has complete control of the payment, Gill is reimbursed for her time in supporting David with his direct payment and the local authority is able to make a saving in the one-off support allocation as there are no provider overheads to pay. In promoting David’s wellbeing, the local authority has demonstrated regard for the balance between promoting an individual’s wellbeing and that of people who are involved in caring for them. It has given Gill increased control in a way that David is comfortable with and supports.

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12.36 The 2009 Direct Payment Regulations excluded the payment from being used to pay for care from a close family member living in the same household, except where the local authority determined this to be necessary. ^{[footnote 52]} While the Care and Support (Direct Payments) Regulations 2014 maintain this provision regarding paying a family member living in the same household for care, it provides a distinction between ‘care’ and ‘administration/management’ of the direct payment. This allows people to pay a close family member living in the same household to provide management and/or administrative support to the direct payment holder in cases where the local authority determines this to be necessary. This is intended to reflect the fact that in some cases, especially where there are multiple complex needs, the direct payment amount may be substantial.

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Example: Direct payment paid to a family member where necessary

James has severe learning difficulties as well as various physical disabilities. He has serious trust issues and a unique way of communicating that only his family, through years of care as a child, can understand. The local authority agrees that using a direct payment to pay for care from his parents is necessary as it is the best way to meet James’s needs and outcomes.

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12.37 The management and administration of a large payment, along with organising care and support can be a complex and time consuming task. This allows family members performing this task to be paid a proportion of the direct payment, similar to what many direct payment holders pay to third-party support organisations, as long as the local authority allows this.

12.38 This is not intended to be income replacement, and people interested in requesting this option should be informed of tax and employment implications, any impacts upon other benefits and given (or signposted to) information and advice to help them decide. The local authority should be satisfied that it is necessary to make the payment to the family member to provide this service and that the direct payment will only be used for administration and management of the payment. The circumstances and payment amount should be decided and agreed with the person requiring care and support, the family member, local authority and any other person (for example, advocate), with the local authority taking steps to ensure all parties agree.

12.39 These decisions should be recorded in the care plan and include the amount of the payments, their frequency and the activities that are covered. This arrangement must also be taken into account during allocation of the personal budget so that the amount remains sufficient to meet the person’s needs.

12.40 Local authorities will need to have in place agreement between all parties about what steps to take in case of a dispute regarding the management of the payment by a household family member. This will be especially relevant where the person providing administrative and management is also the nominated or authorised direct payment recipient. It would not be appropriate to allow this where there is a risk that the direct payment may be abused, or there are other sensitivities such as potential safeguarding issues.

Short-term care in a care home

12.41 Direct payments cannot currently be used to pay for people to live in long-term care home placements. They can be made to enable people to purchase for themselves a short stay in care homes, provided that the stay does not exceed a period of 4 consecutive weeks in any 12-month period. This could be used to provide a respite break for a carer, for example.

12.42 The Regulations specify that where the interim period between 2 stays in care homes is less than 4 weeks, then the 2 stays should be added together to make a cumulative total, which should also not exceed 4 weeks if it is to be paid for with direct payments. On the other hand, if 2 stays in care homes are more than 4 weeks apart then they are not added together.

12.43 Once a direct payment recipient has had 4 consecutive weeks in care homes, or 2 or more periods separated by less than 4 weeks which added together total 4 weeks, then they cannot use their direct payments to pay for any more home services care until 12 months have passed from the start of the 4-week period. On the other hand, as long as each stay is less than 4 weeks and there is an interim period of at least 4 weeks between 2 or more stays which added together exceed 4 weeks, then the service recipient may use their direct payments to pay for residential breaks throughout the year.

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Example: Direct Payments for short-term residential care

Mrs. H has one week in a care home every 6 weeks. Because each week in a care home is more than 4 weeks a part, they are not added together. The cumulative total is only one week and the 4-week limit is never reached.

Peter has 3 weeks in a care home, 2 weeks at home and then another week in a care home. The 2 episodes of time in a care home are less than 4 weeks apart and so they are added together making 4 weeks in total. Peter cannot use his direct payments to purchase any more care home services within a 12-month period.

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12.44 People can receive additional weeks in a care home once they have reached the 4-week maximum. They cannot purchase the stay using their direct payments, but if the local authority and the person agrees that a longer stay is needed, it can still arrange and fund stays for the person. There is no restriction on the length of time for which the local authority may arrange such accommodation for someone (see chapter 8 for guidance on choice of accommodation).

12.45 The time limit is imposed to promote people’s independence and to encourage them to remain at home rather than moving into long-term home placement. Where a person is constantly using the direct payment to pay for a short-term care home stays, the local authority should consider whether to conduct a review to ensure that the care plan is still meeting needs.

Long-term care in a care home

12.46 People who are living in care homes may receive direct payments in relation to non-residential care services. For example, they may have temporary access to direct payments to try out independent living arrangements before making a commitment to moving out of their care home. Direct payments can also be used by people living in care homes to take part in day-time activities. This can be particularly empowering for young people in transition (see chapter 16).

12.47 Direct payments cannot currently be used to secure long-term stays in a care home. Approaches to the use of direct payments in care homes have been trialled in a number of local authorities which were designated trailblazers and specified in the regulations The learning from this trailblazer programme will be used to develop additional statutory guidance for local authorities when direct payments for long-term stays in care homes is introduced for all local authorities in 2020. Trailblazers were asked if they wished to remain on the schedule of those local authorities not prohibited from making a direct payment for the purposes of securing long term care in a care home until national rollout in 2020 and the regulations were amended accordingly.

Becoming an employer

12.48 Local authorities should give people clear advice as to their responsibilities when managing direct payments, and whether the person in receipt of direct payments needs to register with HM Revenue & Customs (HMRC) as an employer. Becoming an employer carries with it certain responsibilities and obligations, in particular to HMRC and people need to be aware of these before agreeing to take up a direct payment. Disability and tax – a guide provides information on being an employer.

12.49 The local authority should consider using the proportionality principle, whether to carry out checks to make sure any PAYE income tax and National Insurance contributions deducted from an employee’s pay is in turn paid over to HMRC, and that employment payments do not breach the national minimum wage and conform to pension requirements if eligible. Some people may not need this check to be performed, but it may be more appropriate in other cases and conform to pension requirements if eligible. ^{[footnote 53]}

Where it becomes clear that payments, or returns detailing employee information deductions, have not been made, or that the individual is failing to meet their obligations as an employer generally, the direct payment scheme should be reviewed and consideration given to whether alternative arrangements that result in the direct payment recipient no longer acting as the employer need to be made. Not doing so may result in the individual building up arrears of tax and National Insurance due to HMRC, which may then lead to enforcement action to recover any debt. This situation should be able to be avoided by effective monitoring where appropriate, and by providing clear, accessible upfront information about the responsibilities of becoming an employer. Many local authorities have commissioned voluntary and charity organisations to provide support to direct payment holders on these matters.

12.50 Many people are interested in using the direct payment to become an employer, for example, directly employing a personal assistant (PA). In these instances, the local authority should ensure that the person is given appropriate information and advice that explains the difference between a regulated and unregulated provider to help the person make a fully informed decision on how best to meet their needs. Where a direct payment is made under section 32 of the Act and to comply with the regulations, the local authority must also ensure that the authorised person is aware of how to access Disclosure and Barring Service Checks (DBS – previously CRB checks) on individuals they wish to employ, for example by ensuring that a check has been made by the agency providing the service, the local authority, or by another body. Individuals cannot apply for DBS checks on other individuals, and the local authority should make people aware of this, and the importance of thorough checks and employment references in the recruitment process.

12.51 Where a person wishes to directly employ their own PA, the local authority should also have regard to the guidance published by Skills for Care detailing minimum levels of support for individual employers and PAs. This guidance recommends local authorities should provide on-going support through access to training activities in a variety of ways and promote the Workforce Development Fund. It also proposes that local authorities promote apprenticeships for PAs.

Direct payments and hospital stays

12.52 There may often be occasions when direct payment holders require a stay in hospital. However, this should not mean that the direct payment must be suspended while the individual is in hospital. Where the direct payment recipient is also the person requiring care and support, consideration should be given to how the direct payment may be used in hospital to meet non-health needs or to ensure employment arrangements are maintained. Suspending or even terminating the payment could result in the person having to break the employment contract with a trusted personal assistant, causing distress and a lack of continuity of care when discharged from hospital.

12.53 In these cases, the local authority should explore with the person, their carer and the NHS the options to ensure that both the health and care and support needs of the person are being fully met in the best way possible. For example, the person may prefer the personal assistant to visit hospital to help with personal care matters. This may be especially so where there has been a long relationship between the direct payment holder and the personal assistant. This should not interfere with the medical duties of hospital personnel, but be tailored to work alongside health provision.

12.54 In some cases, the nominated or authorised person managing the direct payment may require a hospital stay. In these cases, the authority must conduct an urgent review to ensure that the person continues to receive care and support to meet their needs. This may be through a temporary nominated/ authorised person, or through short-term authority arranged care and support.

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Example: Using a direct payment whilst in hospital

Peter is deafblind and is required to stay in hospital for an operation. Whilst the hospital pays for an interpreter for the medical interventions, Peter needs additional support to be able to move around the ward, and to communicate informally with staff and his family. The local authority and the NHS Trust agree that Peter’s communicator guide continues to support him in hospital, and is paid for via the direct payment, as it was when Peter was at home. Personal and medical care is provided by NHS staff but Peter’s communicator guide is on hand to provide specialist communication and guiding support to make his hospital stay is as comfortable as possible.

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Direct payments for local authority services

12.55 As a general rule, direct payments should not be used to pay for local authority-provided services from the ‘home’ local authority. Where a person wishes to receive care and support from their local authority, it should be easier and less burdensome to provide the service direct to the person. This will also avoid possible conflicts of interest where the local authority is providing the direct payment, but also promoting their services for people to purchase.

12.56 There may be cases where the local authority exercises discretion to provide care and support by receiving a direct payment amount, for example this could be where a person who is using direct payments wants to make a one-off purchase from the local authority such as a place in day care. In these cases, the local authority should take into account the wishes of the person requiring care and support when making a decision. In one off cases such as these, it may be less burdensome to accept the direct payment amount, rather than providing the service and then reducing the personal budget and direct payment accordingly.

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Example: Local authority provided service

Graham has a direct payment for the full amount of his personal budget allowance. He decides to use a local authority run day service on an infrequent basis and requests to pay for it with his direct payment so that he retains flexibility about when he attends. The local authority service is able to agree to this request and has systems already in place to take payments as self-funders often use the service. The authority advise Graham that if he wishes to use the day service on a frequent basis (for example, once a week) it would be better to provide the service to him direct, and to reduce the direct payment amount accordingly.

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12.57 This does not preclude people from using their direct payment to purchase care and support from a different local authority. For example, a person may live close to authority boundaries and another local authority could provide a particular service that their ‘home’ authority does not provide.

Direct payments in the form of pre-paid or pre-payment cards

12.58 Many local authorities have been developing the use of pre-paid cards as a mechanism to allow direct payments without the need for a separate bank account, or to ease the financial management of the payment. Whilst the use of such cards can be a useful step from managed services to direct payments, they should not be provided as the only option to take a direct payment The offer of a ‘traditional’ direct payment paid into a bank account should always be available if this is what the person requests and this is appropriate to meet needs. Consideration should be given to the benefit gained from this arrangement as opposed to receiving the payment via a pre-paid card.

12.59 It is also important that where a pre-paid card system is used, the person is still free to exercise choice and control. For example, there should not be blanket restrictions on cash withdrawals from pre-paid cards which could limit choice and control. The card must not be linked solely to an online market-place that only contains selected providers in which to choose from. Local authorities should therefore give consideration to how they develop card systems that encourage flexibility and innovation, and consider consulting care and support user groups on any proposed changes to direct payment processes.

Harmonisation of direct payments

12.60 In circumstances where it is in the person’s interest to combine the plan and budget with another form of state support (such as personal health budgets), and the person agrees that plans should be combined, the local authority should give consideration to whether the person is receiving direct payments from partner organisations, such as the NHS. If so, attempts should be made to harmonise the direct payments so that the person does not have multiple payments each with their own monitoring regime. For example, the local authority could work with the NHS partner to agree on a ‘lead organisation’ that oversees the overall budget and monitors the direct payments to ensure they are being to meet both health and care needs, while still allowing both bodies to satisfy themselves of their statutory responsibilities.

Reviewing direct payments

12.61 In addition to monitoring direct payments generally to ensure they are being used to meet care and support needs, the Regulations set out that local authorities must also review the making of the direct payment within the first 6 months of making the first payment. This provision is intended to be used for direct payments made under the powers in the Care Act, rather than pre-existing ones.

12.62 This review is intended to be light-touch to ensure that the person is comfortable with using the direct payment, and experiencing no initial issues. It should ideally be incorporated within the initial review of the care and support plan 6-8 weeks after sign-off and include elements such as managing and using the direct payment and a discussion to consider any long-term support arrangements that may be appropriate such as payroll, insurance cover and third party support. Local authorities should ensure that reviewing officers are appropriately trained to review direct payments (for example are familiar with financial procedures and employment laws) This review is not intended to be a full review of the person’s care and support plan. However, if this review raises concerns or requires actions that affect the detail recorded in the care plan, then a full review of the plan would need to be carried out.

12.63 If the direct payment recipient is employing people, the local authority should as part of the review, consider checking, if appropriate, to ensure the individual is fulfilling their responsibilities as the employer, in particular that they are submitting PAYE returns to HMRC as well as paying tax and National Insurance deductions made to HMRC.

12.64 The Regulations also set out that following the 6-month review, the local authority must then review the making of the direct payment no later than every 12 months. In practice, after the initial 6-month review period, local authorities may wish to consider aligning the annual review of the direct payment with the general review of the care plan. This will reduce bureaucracy and allow the local authority to review both at the same time.

12.65 Where a direct payment is being allocated to a nominated/authorised person, or where there may be a family carer being paid for administrative support, the review should incorporate all of these parties as well as the person in need of care and support. This will ensure that the local authority receives views from everyone involved in the direct payment, so that it can satisfy itself that there are no initial issues that require resolving.

12.66 The outcome of the review should be written down, and a copy given to all parties. Where there are issues that require resolving, the resolution method should be agreed with all parties involved, as far as is reasonably practicable. Where appropriate, local authorities should advise people of their rights to access the local authority complaints procedure.

Terminating direct payments

12.67 Direct payments should only be terminated as a last resort, or where there is clear and serious contradiction of the Regulations or where the conditions in sections 31 or 32 of the Act are no longer met (except in cases of fluctuating capacity – see sections below). Local authorities should take all reasonable steps to address any situations without the termination of the payment. Effective, but proportionate monitoring processes will help local authorities to spot any potential issues before a termination is necessary.

12.68 If terminating a direct payment, the local authority must ensure there is no gap in the provision of care support. Where a decision has been made to terminate a direct payment, the local authority should conduct a revision of the care and support plan, or support plan, to ensure that the plan is appropriate to meet the needs in question (see Chapter 13 on reviews).

Reasons for discontinuing direct payments

12.69 A person to whom direct payments are made, whether to purchase support for themselves or on behalf of someone else, may decide at any time that they no longer wish to continue receiving direct payments. In these cases, the local authority should ensure there are no outstanding contractual liabilities, and conduct a review of the care plan to consider alternate arrangements to meet needs.

12.70 The Care Act also sets out that a local authority shall cease making direct payments if the person no longer appears to be capable of managing the direct payments or of managing them with whatever support is necessary.

12.71 Direct payments should be discontinued when a person no longer needs the support for which the direct payments are made. This might happen in situations where the direct payments are for short-term packages when leaving care home or hospital. Direct payments for after-care services under section 117 of the Mental Health Act would also cease once the clinical commissioning group and local authority are satisfied that the person concerned is no longer in need of such services.

12.72 There may be circumstances in which the local authority discontinues direct payments temporarily. An example might be when an individual does not require assistance for a short period because their condition improves and they do not require the care and support that the direct payments are intended to secure. The local authority will need to discuss with the person, their carer, and any other person how best to manage this. The person should be allowed to resume responsibility for their own care after the interruption, if that remains their wish, unless there has been a change of circumstances which means that the conditions in the Act and/or Regulations are no longer met. If there is a change of circumstances that affects the care plan/support plan the local authority must revise the plan to ensure that it is still meeting needs (see Chapter 13).

12.73 The local authority might also discontinue payments if the person fails to comply with a condition imposed under regulations to which the direct payments are subject or if for some reason the local authority no longer believes it is appropriate to make the direct payments. For example, the local authority might discontinue the direct payment if it is apparent that they have not been used to achieve the outcomes of the care plan.

12.74 The 2009 Direct Payment regulations set out that direct payments must not be provided under certain conditions, such as where the recipient is placed by the courts under a condition or requirement relating to a drug and/or alcohol dependency. The Care and Support (Direct Payments) Regulations 2014 retain this universal restriction. The groups and conditions remain substantially the same as the 2009 regulations and are set out in the schedule to the 2014 regulations.

12.75 Where direct payments are discontinued as a result of criminal justice legislative provisions, the local authority should make timely arrangements for services to be provided in lieu of the direct payments, to ensure continuity of support.

Discontinuing direct payments in the case of persons with capacity to consent

12.76 Where someone with capacity was receiving direct payments but then loses capacity to consent, the local authority should discontinue direct payments to that person and consider making payments to an authorised person instead. In the interim, the local authority should make alternative arrangements to ensure continuity of support for the person concerned.

12.77 If the local authority believes the loss of capacity to consent to be temporary, it may continue to make payments if there is someone else who is willing to manage payments on the person’s behalf. This situation should be treated as strictly temporary and closely monitored to ensure that, once the person has regained capacity, they are able to exercise overall control over the direct payments as before. If the person’s loss of capacity to consent becomes prolonged, then the local authority should consider making more formal arrangements for an authorised person to take over receipt of the direct payments on that person’s behalf. The local authority should make clear that the arrangement is designed to be temporary, so that the person managing the direct payment does not enter into any long-term contractual arrangements.

Discontinuing direct payments in the case of persons lacking capacity to consent

12.78 Direct payments must be discontinued if the local authority is no longer satisfied for whatever reason that the authorised person is acting in the best interests of the beneficiary, within the meaning of the 2005 Act. The local authority might also wish to discontinue the direct payments if it has sufficient reason to believe that the conditions imposed under regulations on the authorised person are not being met. The authority may wish to consider if someone else can act as an authorised person for the person lacking capacity, or whether it will have to arrange services for them in place of the direct payments.

12.79 Direct payments under section 32 of the Act must be discontinued where the local authority has reason to believe that someone who had lacked capacity to consent to direct payments has now regained that capacity on a long-term or permanent basis. The authority should not terminate direct payments to the authorised person before beginning to make direct payments to the service recipient themselves or to arrange services for them, according to their wishes. If the local authority is satisfied that the regaining of capacity will only be temporary, then it can continue to make direct payments to the authorised person if during the period that the adult has the capacity to make the request and is capable of managing the direct payment, the adult will manage the payments for him or herself.

How to discontinue direct payments

12.80 In all cases, as soon as possible the local authority should discuss with individuals, their carers and any person managing the direct payments if it is considering discontinuing direct payments to them, in order to explore all available options before making the final decision to terminate the direct payments. For example, if ability to manage is an issue, the individual should be given an opportunity to demonstrate that they can continue to manage direct payments, albeit with greater support if appropriate. The local authority should not automatically assume when problems arise that the only solution is to discontinue or end direct payments.

12.81 If the local authority does decide to withdraw direct payments, it will need to conduct a review of the plan and agree alternative care and support provision with the person, their carer and independent advocate if they have one, unless the withdrawal was following a review after which the local authority concluded that the services were no longer needed A minimum period of notice should be established that will normally be given before direct payments are discontinued. This should be included in the information to be provided to people who are considering receiving direct payments.

12.82 It will be extremely unlikely that a local authority will discontinue direct payments without giving notice, although in serious cases this may be warranted (for example, the authorised person is not acting in the best interests of the person). Local authorities should explain to people, before they begin to receive direct payments, the exceptional circumstances in which this might occur and discuss with them the implications this has for the arrangements that individuals might make.

12.83 If direct payments are discontinued, some people may find themselves with ongoing contractual responsibilities or having to terminate contracts for services (including possibly making employees redundant). Local authorities should take reasonable steps to make people aware of the potential consequences if direct payments end, and any obligations they may have.

12.84 There may be circumstances where the person has lost the capacity to manage the direct payment and there is no-one else to manage the payment on their behalf, or where a person needs additional support to terminate arrangements. In these cases the local authority should have regard as to whether it needs to step in or provide support to ensure that any contractual arrangements are appropriately terminated to ensure that additional costs are not incurred.

Links to external resources

• Direct payments in healthcare - a practical guide
• Employee information
• Register as an employer
• Introduction to PAYE
• Information on taking on a new employee
• Guidance for anyone taking on a personal assistant
• Best practice in direct payments support - a guide for commissioners
• Self-Directed Support: Reducing process, increasing choice and control
• PA toolkit  

13. Review of care and support plans

This chapter provides guidance on section 27 of the Care Act 2014 and covers:

• review of the care and support plan, support plan
• keeping plans under review generally
• planned and unplanned review
• considering a request for a review of a care plan, support plan
• considering a review
• revision of the care and support plan, support plan
• timeliness and regularity of reviews

13.1 Ensuring all people with a care and support plan, or support plan have the opportunity to reflect on what is working, what is not working and what might need to change is an important part of the planning process. It ensures that plans are kept up to date and relevant to the person’s needs and aspirations, provides confidence in the system and mitigates the risks of people entering a crisis situation.

13.2 The review process should be person-centred and outcomes-focused, as well as accessible and proportionate to the needs to be met. The process must involve the person needing care and also the carer where feasible, and consideration must be given whether to involve an independent advocate who local authorities are required to supply in the circumstances specified in the Act.

13.3 Reviewing intended outcomes detailed in the plan is the means by which the local authority complies with its ongoing responsibility towards people with care and support needs. The duty on the local authority therefore is to ensure that a review occurs, and if needed, a revision follows this. Consideration should also be given to authorising others to conduct a review – this could include the person themselves or carer, a third party (such as a provider) or another professional, with the local authority adopting an assurance and sign-off approach.

13.4 The review will help to identify if the person’s needs have changed and can in such circumstances lead to a reassessment. It should also identify other circumstances which may have changed, and follow safeguarding principles in ensuring that the person is not at risk of abuse or neglect. The review must not be used as a mechanism to arbitrarily reduce the level of a person’s personal budget.

13.5 In many cases, the review and revision of the plan should be intrinsically linked; it should not be possible to decide whether to revise a plan without a thorough review to ascertain if a revision is necessary, and in the best interests of the person. In addition, where a review is being undertaken where a person has a carer, the local authority should consider whether the carer’s support plan requires reviewing, too. 13.6 However, there are occasions when a change to a plan is required but there has been no change in the levels of need (for example, a carer may change the times when they are available to support). In addition, there can be small changes in need, at times temporary, which can be accommodated within the established personal budget.

13.7 In these circumstances, it may not be appropriate for the person to go through a full review and revision of the plan. The local authority should respond to these ‘light-touch’ requests in a proportionate and reasonable way.

13.8 Where the local authority is satisfied that a revision is necessary, it must work through the assessment and care planning processes as detailed in sections 9-12 and 25 of the Act to the extent that it thinks appropriate (see chapter 6).

13.9 This chapter applies to people in need of care and support and carers equally, unless specifically stated. As many of the same principles apply to both care and support planning and reviews, this chapter should be read in conjunction with chapter 10 on care and support planning. Where a plan is for a person with mental health problems, this chapter should be read in conjunction with chapter 34 of the Mental Health Act 1983 Code of Practice (on the Care Programme Approach) and Refocusing the Care Programme Approach.

Review of the care and support plan, support plan

Keeping plans under review generally

13.10 Keeping plans under review is an essential element of the planning process. Without a system of regular reviews, plans could become quickly out of date meaning that people are not obtaining the care and support required to meet their needs. Plans may also identify outcomes that the person wants to achieve which are progressive or time limited, so a periodic review is vital to ensure that the plan remains relevant to their goals and aspirations.

13.11 The Act specifies that plans must be kept under review generally. Therefore, local authorities should establish systems that allow the proportionate monitoring of both care and support plans and support plans to ensure that needs are continuing to be met. This system should also include seeking cooperation with other health and care professionals who may be able to inform the authority of any concerns about the ability of the plan to meet needs (see chapter 15 on integration and cooperation).

13.12 The review should be a positive opportunity to take stock and consider if the plan is enabling the person to meet their needs and achieve their aspirations. The process should not be overly-complex or bureaucratic, and should cover these broad elements, which should be communicated to the person before the review process begins:

• have the person’s circumstances and/or care and support or support needs changed?
• what is working in the plan, what is not working, and what might need to change?
• have the outcomes identified in the plan been achieved or not?
• does the person have new outcomes they want to meet?
• could improvements be made to achieve better outcomes?
• is the person’s personal budget enabling them to meet their needs and the outcomes identified in their plan?
• is the current method of managing it still the best one for what they want to achieve, for example, should direct payments be considered (see chapter 11 on personal budgets)?
• is the personal budget still meeting the sufficiency test?
• are there any changes in the person’s informal and community support networks which might impact negatively or positively on the plan?
• have there been any changes to the person’s needs or circumstances which might mean they are at risk of abuse or neglect?
• is the person, carer, independent advocate satisfied with the plan?

13.13 There are several different routes to reviewing a care and support or support plan including:

• a planned review (the date for which was set with the individual during care and support or support planning, or through general monitoring)
• an unplanned review (which results from a change in needs or circumstance that the local authority becomes aware of, for example, a fall or hospital admission)
• a requested review (where the person with the care and support or support plan, or their carer, family member, advocate or other interested party makes a request that a review is conducted. This may also be as the result of a change in needs or circumstances)

Planned reviews

13.14 During the planning process, the person and their social worker, or relevant professional may have discussed when it might be useful to review the plan and therefore agree to record this date in the plan. This may be valuable to people in the care system so that they can anticipate when the review will take place, rather than the review being an unexpected experience. It also fits with the Government’s view of personalised care and support, as the person may have a view as to a suitable time-frame for the review to occur. Additionally, setting out anticipated review dates may help authorities with future workload planning.

13.15 Even in cases with anticipated review dates, this should not reduce the requirement of the local authority to keep the plan under review generally. The first planned review should be an initial ‘light touch’ review of the planning arrangements 6-8 weeks after sign-off of the personal budget and plan. Where relevant, this should also be combined with an initial review of direct payment arrangements. This will provide reassurance to all parties that the plan is working as intended, and will help to identify any teething problems. In addition, where plans are combined with other plans (for example the plan of a carer, or education, housing, and health and care plans which may be reviewed annually) the local authority should be aware of the review arrangements with these other plans and seek to align reviews together.

13.16 Local authorities should have regard to ensuring the planned review is proportionate to the circumstances, the value of the personal budget and any risks identified. In a similar way to care and support or support planning, there should be a range of review options available, which may include self-review, peer-led review, reviews conducted remotely, or face to face reviews with a social worker or other relevant professional. For example, where the person has a stable, longstanding support package with fixed or long-term outcomes, they may wish to complete a self-review at the planned time which is then submitted to the local authority to sign-off, rather than have a face to face review with their social worker. This does not preclude their requesting a review at another time or a face to face review being needed if there is an unplanned change in needs or circumstances.

13.17 In all instances, the method of review should, wherever reasonably possible, be agreed with the person and must involve the adult to whom the plan relates, any carer the adult has and any person the adult asks the authority to involve. The local authority should take all appropriate measures to ensure their involvement and the involvement of other people if appropriate, such as an independent advocate where this is required by the circumstances specified in the Act.

13.18 Furthermore, if a person is recorded as having a mental impairment and lacking capacity to make some decisions, then the local authority should consider carefully when it will be appropriate for the next review to take place. In these instances, making appropriate use of a social worker as the lead professional should be encouraged. Where conditions are progressive, and the person’s health is deteriorating, reviews may need to be much more frequent. Similarly where a person has few or no family members or friends involved in supporting them, the risks are higher, and again, reviews or monitoring may need to be more frequent. It may beneficial to put a ‘duty to request a review’ into commissioned services so that employees are required to inform the local authority if they think that there is a need for a review. Where this occurs, the person should still be involved in the review process to ensure their views are taken account of.

Unplanned reviews

13.19 If there is any information or evidence that suggests that circumstances have changed in a way that may affect the efficacy, appropriateness or content of the plan, then the local authority should immediately conduct a review to ascertain whether the plan requires revision. For example this could be where a carer is no longer able to provide the same level of care, there is evidence of a deterioration of the person’s physical or mental wellbeing or the local authority receives a safeguarding alert. During the review process, the person the plan is intended for, or the person acting on their behalf should be kept fully involved and informed of what is occurring, the timescales involved and any likely consequences. This will help to alleviate anxiety at a time where things in the person’s life may have changed substantially.

Considering a request for a review of a plan

13.20 In addition to the duty on local authorities to keep plans under review generally, the Act provides a duty on the local authority to conduct a review if a request for one is made by the adult or a person acting on the adult’s behalf. ^{[footnote 54]} Local authorities should provide information and advice to people at the planning stage about how to make a request for a review. This process should be accessible and include multiple routes to make a request – phone, email, or text for example. The information given to people should also set out what happens after a request is made, and the timescales involved in the process.

13.21 The request process should be accessible and streamlined, with local authorities acting promptly after a request has been received. Consideration should also be given to the accessibility needs of the local population. This may, for example, include multiple language versions, and non-internet routes to request for people who may not have access to the internet, or in areas of digital exclusion. Local authorities should also consider the role that local community and voluntary organisations can play to help people log requests.

13.22 The right to request a review applies not just to the person receiving the care, but to others supporting them or interested in their wellbeing. For example a person with advanced dementia may not be able to request a review, but a relative or a neighbour may want to draw the attention of the local authority to a deterioration in the person’s condition. The local authority should consider the request even if it is not made by the adult or their carer.

Considering a review

13.23 Upon receipt of a request to conduct a review, the local authority must consider this and judge the merits of conducting a review. In most cases, it is the expectation that a review should be performed unless the authority is reasonably satisfied that the plan remains sufficient, or the request is frivolous, or is made on the basis of inaccurate information, or is a complaint; for example where a person lodges multiple requests for a review in a short period of time and there is no reason to believe that the person’s needs have changed. Local authorities should clearly set out the process that will be used to consider requests.

13.24 In considering whether to undertake a review the authority must involve the person, carer and anyone else the person requests to be involved where feasible. The local authority will need to identify those who may have significant difficulty in being fully involved in the decision to review and when there is no appropriate person who can represent or support their involvement and consider the duty to provide independent advocacy (see also chapter 7 on advocacy).

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Example: Accepting a renewal request

A local authority receives an email from a relative of an older person receiving care and support at home. The email provides details that the older person’s condition is deteriorating and supplies evidence of recent visits to the GP. The local authority therefore decides to review their care and support plan to ensure that it continues to meet their needs.

Example: Declining a renewal request

A local authority receives a phone call from Mr X. He is angry as he feels that he has needs that have not been identified in his care plan and requests a review of the plan. The authority has on a separate recent occasion reviewed his plan, when it came to the conclusion that no revision was necessary and informed Mr X of the decision and the reasons for it. Therefore, the local authority declines the request in this case and provides a written explanation to Mr X, informing hi m of an anticipated date of when it will be formally reviewing the plan together with information on its complaints procedure.

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13.25 Where a decision is made not to conduct a review following a request, the local authority should set out the reasons for not accepting the request in a format accessible to the person, along with details of how to pursue the matter if the person remains unsatisfied. In most cases, it would be helpful for this to set out that the authority will continue to monitor the plan to ensure that it remains fit for purpose, and that the decision does not affect the right to make a future request for review. Although not mandatory, it may also be prudent for the local authority to set out when the person can expect a formal review of the plan.

Revision of the care and support plan, support plan

13.26 Where a decision has been made following a review that a revision is necessary, the authority should inform the person, or a person acting on their behalf of the decision and what this will involve. Where the person has substantial difficulty in being actively involved with the review, and where there are no family or friends to help them to engage, an independent advocate must be involved (see also chapter 7 on advocacy).

13.27 When revising the plan the local authority must involve the person, their carer and any other persons the adult may want involved, and their advocate where the person qualifies for one. The local authority must take all reasonable steps to agree the revision. The revision should wherever possible follow the process used in the assessment and care planning stages. Indeed, the local authority must if satisfied that the circumstances have changed in a way that affects a care and support or support plan, carry out a needs or carer’s assessment and financial assessment, and then revise the plan and personal budget accordingly. The assessment process following a review should not start from the beginning of the process but pick up from what is already known about the person and should be proportionate. ^{[footnote 55]}

13.28 In some cases a complete change of the plan may be required, whereas in others minor adjustments may be needed. In either case, the following aspects of care planning should be followed:

• the person’s wishes and feelings should be identified as far as possible and they should be supported to be involved
• the revision should be proportionate to the needs to be met
• where the plan was produced in combination with other plans, this should be considered at the revision stage
• the person, carer or person acting on their behalf should be allowed to self-plan in conjunction with the local authority where appropriate
• the development of the revised plan must be made with the involvement of the adult/carer, and any person the adult asks the authority to involve
• any additional elements that were incorporated into the original plan should be replicated in the revised plan where appropriate and agreed by all parties
• there needs to be clarity on the sign-off process, especially where the revised plan is prepared by the person and the local authority

13.29 Particular attention should be taken if the revisions to the plan propose increased restraints or restrictions on a person who has not got the capacity to agree them. This may become a deprivation of liberty, which requires appropriate safeguards to be in place. The local authority should have policies to address how these are recognised and responded to, and the social worker, occupational therapist or other relevant social care qualified professional or Mental Capacity lead should be involved, as well as an advocate.

13.30 The local authority must consider in all cases whether an independent advocate may be required to facilitate the person’s involvement in the revision of the plan. Where the plan was produced with the assistance of an independent advocate, then consideration should be given to whether an independent advocate is also required for the revision of the plan. In these scenarios, the advocate would ideally be the same person to ensure consistency and continuity with the case details. Likewise, where a specialist assessor has been used previously in the care and support journey, the local authority should have regard to whether they need to employ the expertise of the assessor in the review.

Timeliness and regularity of reviews

13.31 In the absence of any request of a review, or any indication that circumstances may have changed, the local authority should conduct a periodic review of plan. As stated earlier, this could be indicated at the planning stage by including an anticipated review date to allow for future planning. In addition, local authorities may wish to align the periodic review of the plan, with the compulsory review of the direct payment arrangements, where this is appropriate.

13.32 It is the expectation that authorities should conduct a review of the plan no later than every 12 months, although a light-touch review should be considered 6– 8 weeks after agreement and sign-off of the plan and personal budget, to ensure that the arrangements are accurate and there are no initial issues to be aware of. This light-touch review should also be considered after revision of an existing plan to ensure that the new plan is working as intended, and in cases where a person chooses a direct payment, should be aligned with the review of the making of the direct payment (see chapter 12 on direct payments).

13.33 The periodic review should be proportionate to the needs to be met, and the process should not contain any surprises for the person concerned. Periodic reviews and reviews in general must not be used to arbitrarily reduce a care and support package. Such behaviour would be unlawful under the Act as the personal budget must always be an amount appropriate to meet the person’s needs. Any reduction to a personal budget should be the result of a change in need or circumstance.

13.34 The review should be performed as quickly as is reasonably practicable. As with care and support planning, it is expected that in most cases the revision of the plan should be completed in a timely manner proportionate to the needs to be met. Where there is an urgent need to intervene, local authorities should consider implementing interim packages to urgently meet needs while the plan is revised. However, local authorities should work with the person to avoid such circumstances wherever possible by ensuring that any potential emergency needs are identified as part of the care and support planning stage and planned for accordingly.

Links to external resources

• Delivering Care and Support Planning Guide (PDF, 2.59MB)
• Outcome focused reviews – a practical guide

Safeguarding

14. Safeguarding

This chapter provides guidance on sections 42 to 46 of the Care Act 2014 and covers:

• adult safeguarding: what it is and why it matters
• abuse and neglect
• understanding what they are and spotting the signs
• reporting and responding to abuse and neglect
• carers and adult safeguarding
• adult safeguarding procedures
• local authority’s role and multi-agency working
• criminal offences and adult safeguarding
• safeguarding enquiries
• Safeguarding Adults Boards
• Safeguarding Adults Reviews
• information sharing, confidentiality and record keeping
• roles, responsibilities and training in local authorities, the NHS and other agencies

14.1 The chapter replaces the ‘No Secrets’ guidance.

14.2 The safeguarding duties apply to an adult who:

• has needs for care and support (whether or not the local authority is meeting any of those needs)
• is experiencing, or at risk of, abuse or neglect
• as a result of those care and support needs is unable to protect themselves from either the risk of, or the experience of abuse or neglect

14.3 The adult experiencing, or at risk of abuse or neglect will hereafter be referred to as ‘the adult’ throughout this chapter.

14.4 The safeguarding duties have a legal effect in relation to organisations other than the local authority on for example the NHS and the Police.

14.5 Where someone is 18 or over but is still receiving children’s services and a safeguarding issue is raised, the matter should be dealt with through adult safeguarding arrangements. For example, this could occur when a young person with substantial and complex needs continues to be supported in a residential educational setting until the age of 25 (see also chapter 16). Where appropriate, adult safeguarding services should involve the local authority’s children’s safeguarding colleagues as well as any relevant partners (for example, the Police or NHS) or other persons relevant to the case. However, the level of needs is not relevant, and the young adult does not need to have eligible needs for care and support under the Care Act, or be receiving any particular service from the local authority, in order for the safeguarding duties to apply – so long as the conditions set out in paragraph 14.2 are met.

14.6 Local authority statutory adult safeguarding duties apply equally to those adults with care and support needs regardless of whether those needs are being met, regardless of whether the adult lacks mental capacity or not, and regardless of setting, other than prisons and approved premises where prison governors and National Offender Management Service (NOMS) respectively have responsibility. However, senior representatives of those services may sit on the Safeguarding Adults Board and play an important role in the strategic development of adult safeguarding locally. Additionally, they may ask for advice from the local authority when faced with a safeguarding issue that they are finding particularly challenging.

Adult safeguarding – what it is and why it matters

14.7 Safeguarding means protecting an adult’s right to live in safety, free from abuse and neglect. It is about people and organisations working together to prevent and stop both the risks and experience of abuse or neglect, while at the same time making sure that the adult’s wellbeing is promoted including, where appropriate, having regard to their views, wishes, feelings and beliefs in deciding on any action. This must recognise that adults sometimes have complex interpersonal relationships and may be ambivalent, unclear or unrealistic about their personal circumstances.

14.8 Organisations should always promote the adult’s wellbeing in their safeguarding arrangements. People have complex lives and being safe is only one of the things they want for themselves. Professionals should work with the adult to establish what being safe means to them and how that can be best achieved. Professionals and other staff should not be advocating ‘safety’ measures that do not take account of individual well-being, as defined in Section 1 of the Care Act.

14.9 Safeguarding is not a substitute for:

• providers’ responsibilities to provide safe and high quality care and support
• commissioners regularly assuring themselves of the safety and effectiveness of commissioned services
• the Care Quality Commission (CQC) ensuring that regulated providers comply with the fundamental standards of care or by taking enforcement action
• the core duties of the police to prevent and detect crime and protect life and property

14.10 The Care Act requires that each local authority must:

• make enquiries, or cause others to do so, if it believes an adult is experiencing, or is at risk of, abuse or neglect (see para. 14.16 onwards). An enquiry should establish whether any action needs to be taken to prevent or stop abuse or neglect and if so, by who.
• set up a Safeguarding Adults Board (SAB) (see para. 14.133 onwards)
• arrange, where appropriate, for an independent advocate to represent and support an adult who is the subject of a safeguarding enquiry or Safeguarding Adult Review (SAR) where the adult has ‘substantial difficulty’ in being involved in the process and where there is no other suitable person to represent and support them (see chapter 7 on advocacy)
• co-operate with each of its relevant partners (as set out in Section 6 of the Care Act) in order to protect the adult. In their turn each relevant partner must also co-operate with the local authority.

14.11 The aims of adult safeguarding are to:

• prevent harm and reduce the risk of abuse or neglect to adults with care and support needs
• stop abuse or neglect wherever possible
• safeguard adults in a way that supports them in making choices and having control about how they want to live
• promote an approach that concentrates on improving life for the adults concerned
• raise public awareness so that communities as a whole, alongside professionals, play their part in preventing, identifying and responding to abuse and neglect
• provide information and support in accessible ways to help people understand the different types of abuse, how to stay safe and what to do to raise a concern about the safety or well-being of an adult
• address what has caused the abuse or neglect

14.12 In order to achieve these aims, it is necessary to:

• ensure that everyone, both individuals and organisations, are clear about their roles and responsibilities
• create strong multi-agency partnerships that provide timely and effective prevention of and responses to abuse or neglect
• support the development of a positive learning environment across these partnerships and at all levels within them to help break down cultures that are risk-averse and seek to scapegoat or blame practitioners
• enable access to mainstream community resources such as accessible leisure facilities, safe town centres and community groups that can reduce the social and physical isolation which in itself may increase the risk of abuse or neglect
• clarify how responses to safeguarding concerns deriving from the poor quality and inadequacy of service provision, including patient safety in the health sector, should be responded to

14.13 The following 6 principles apply to all sectors and settings including care and support services, further education colleges, commissioning, regulation and provision of health and care services, social work, healthcare, welfare benefits, housing, wider local authority functions and the criminal justice system. The principles should inform the ways in which professionals and other staff work with adults. The principles can also help SABs, and organisations more widely, by using them to examine and improve their local arrangements.

Six key principles underpin all adult safeguarding work

Empowerment

People being supported and encouraged to make their own decisions and informed consent.

I am asked what I want as the outcomes from the safeguarding process and these directly inform what happens.

Prevention

It is better to take action before harm occurs.

I receive clear and simple information about what abuse is, how to recognise the signs and what I can do to seek help.

Proportionality

The least intrusive response appropriate to the risk presented.

I am sure that the professionals will work in my interest, as I see them and they will only get involved as much as needed.

Protection

Support and representation for those in greatest need.

I get help and support to report abuse and neglect. I get help so that I am able to take part in the safeguarding process to the extent to which I want.

Partnership

Local solutions through services working with their communities. Communities have a part to play in preventing, detecting and reporting neglect and abuse.

I know that staff treat any personal and sensitive information in confidence, only sharing what is helpful and necessary. I am confident that professionals will work together and with me to get the best result for me.

Accountability

Accountability and transparency in delivering safeguarding.

I understand the role of everyone involved in my life and so do they.

Making safeguarding personal

14.14 In addition to these principles, it is also important that all safeguarding partners take a broad community approach to establishing safeguarding arrangements. It is vital that all organisations recognise that adult safeguarding arrangements are there to protect individuals. We all have different preferences, histories, circumstances and life-styles, so it is unhelpful to prescribe a process that must be followed whenever a concern is raised; and the case study below helps illustrate this.

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Case study

Two brothers with mild learning disabilities lived in their family home, where they had remained following the death of their parents some time previously. Large amounts of rubbish had accumulated both in the garden and inside the house, with cleanliness and self-neglect also an issue. They had been targeted by fraudsters, resulting in criminal investigation and conviction of those responsible, but the brothers had refused subsequent services from adult social care and their case had been closed.

They had, however, had a good relationship with their social worker, and as concerns about their health and wellbeing continued it was decided that the social worker would maintain contact, calling in every couple of weeks to see how they were, and offer any help needed, on their terms. After almost a year, through the gradual building of trust and understanding, the brothers asked to be considered for supported housing; with the social worker’s help they improved the state of their house enough to sell it, and moved to a living environment in which practical support could be provided.

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14.15 Making safeguarding personal means it should be person-led and outcome-focused. It engages the person in a conversation about how best to respond to their safeguarding situation in a way that enhances involvement, choice and control as well as improving quality of life, wellbeing and safety. Nevertheless, there are key issues that local authorities and their partners should consider. See diagrams 1A and 1B after para. 14.92 if they suspect or are made aware of abuse or neglect. See paragraph 14.231 for more detail about what such guidelines should cover.

What constitutes abuse and neglect?

14.16 This section considers the different types and patterns of abuse and neglect and the different circumstances in which they may take place. This is not intended to be an exhaustive list but an illustrative guide as to the sort of behaviour which could give rise to a safeguarding concern. This chapter also contains a number of illustrative case studies showing the action that was taken to help the adult stay or become safe.

14.17 Local authorities should not limit their view of what constitutes abuse or neglect, as they can take many forms and the circumstances of the individual case should always be considered; although the criteria at paragraph 14.2 will need to be met before the issue is considered as a safeguarding concern. Exploitation, in particular, is a common theme in the following list of the types of abuse and neglect.

Physical abuse including:

• assault
• hitting
• slapping
• pushing
• misuse of medication
• restraint
• inappropriate physical sanctions

Domestic violence including:

• psychological
• physical
• sexual
• financial
• emotional abuse
• so called ‘honour’ based violence

Sexual abuse including:

• rape
• indecent exposure
• sexual harassment
• inappropriate looking or touching
• sexual teasing or innuendo
• sexual photography
• subjection to pornography or witnessing sexual acts
• indecent exposure
• sexual assault
• sexual acts to which the adult has not consented or was pressured into consenting

Psychological abuse including:

• emotional abuse
• threats of harm or abandonment
• deprivation of contact
• humiliation
• blaming
• controlling
• intimidation
• coercion
• harassment
• verbal abuse
• cyber bullying
• isolation
• unreasonable and unjustified withdrawal of services or supportive networks

Financial or material abuse including:

• theft
• fraud
• internet scamming
• coercion in relation to an adult’s financial affairs or arrangements, including in connection with wills, property, inheritance or financial transactions
• the misuse or misappropriation of property, possessions or benefits

Modern slavery encompasses:

• slavery
• human trafficking
• forced labour and domestic servitude.
• traffickers and slave masters using whatever means they have at their disposal to coerce, deceive and force individuals into a life of abuse, servitude and inhumane treatment

Read Modern slavery: how the UK is leading the fight (PDF. 543KB) for further information.

Discriminatory abuse including forms of:

• harassment
• slurs or similar treatment:
  • because of race
  • gender and gender identity
  • age
  • disability
  • sexual orientation
  • religion

Read Discrimination: your rights for further information.

Organisational abuse

Including neglect and poor care practice within an institution or specific care setting such as a hospital or care home, for example, or in relation to care provided in one’s own home. This may range from one off incidents to on-going ill-treatment. It can be through neglect or poor professional practice as a result of the structure, policies, processes and practices within an organisation.

Neglect and acts of omission including:

• ignoring medical
• emotional or physical care needs
• failure to provide access to appropriate health, care and support or educational services
• the withholding of the necessities of life, such as medication, adequate nutrition and heating

Self-neglect

This covers a wide range of behaviour neglecting to care for one’s personal hygiene, health or surroundings and includes behaviour such as hoarding. It should be noted that self-neglect may not prompt a section 42 enquiry. An assessment should be made on a case by case basis. A decision on whether a response is required under safeguarding will depend on the adult’s ability to protect themselves by controlling their own behaviour. There may come a point when they are no longer able to do this, without external support.

14.18 Incidents of abuse may be one-off or multiple, and affect one person or more. Professionals and others should look beyond single incidents or individuals to identify patterns of harm, just as the CCG, as the regulator of service quality, does when it looks at the quality of care in health and care services. Repeated instances of poor care may be an indication of more serious problems and of what we now describe as organisational abuse. In order to see these patterns it is important that information is recorded and appropriately shared.

14.19 Patterns of abuse vary and include:

• serial abuse, in which the perpetrator seeks out and ‘grooms’ individuals. Sexual abuse sometimes falls into this pattern as do some forms of financial abuse
• long-term abuse, in the context of an ongoing family relationship such as domestic violence between spouses or generations or persistent psychological abuse
• opportunistic abuse, such as theft occurring because money or jewellery has been left lying around

Domestic abuse

14.20 The cross-government definition of domestic violence and abuse is: any incident or pattern of incidents of controlling, coercive, threatening behaviour, violence or abuse between those aged 16 or over who are, or have been, intimate partners or family members regardless of gender or sexuality. The abuse can encompass, but is not limited to:

• psychological
• sexual
• financial
• emotional

14.21 A new offence of coercive and controlling behaviour in intimate and familial relationships was introduced into the Serious Crime Act 2015. The offence will impose a maximum 5 years imprisonment, a fine or both.

14.22 The offence closes a gap in the law around patterns of coercive and controlling behaviour during a relationship between intimate partners, former partners who still live together, or family members, sending a clear message that it is wrong to violate the trust of those closest to you, providing better protection to victims experiencing continuous abuse and allowing for earlier identification, intervention and prevention.

14.23 The offence criminalising coercive or controlling behaviour was commenced on 29 December 2015. Read the accompanying statutory guidance for further information.

Financial abuse

14.24 Financial abuse is the main form of abuse investigated by the Office of the Public Guardian both amongst adults and children at risk. Financial recorded abuse can occur in isolation, but as research has shown, where there are other forms of abuse, there is likely to be financial abuse occurring. Although this is not always the case, everyone should also be aware of this possibility.

14.25 Potential indicators of financial abuse (PDF, 471KB) include:

• change in living conditions
• lack of heating, clothing or food
• inability to pay bills/unexplained shortage of money
• unexplained withdrawals from an account
• unexplained loss/misplacement of financial documents
• the recent addition of authorised signers on a client or donor’s signature card
• sudden or unexpected changes in a will or other financial documents

14.26 This is not an exhaustive list, nor do these examples prove that there is actual abuse occurring. However, they do indicate that a closer look and possible investigation may be needed. Read report on The Financial Abuse of Older People (PDF, 471KB)

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Case study

Mrs B is an 88 year old woman with dementia who was admitted to a care home from hospital following a fall. Mrs B appointed her only daughter G, to act for her under a Lasting Power of Attorney in relation to her property and financial affairs.

Mrs B’s former home was sold and she became liable to pay the full fees of her care home. Mrs B’s daughter failed to pay the fees and arrears built up, until the home made a referral to the local authority, which in turn alerted the Office of the Public Guardian (OPG).

The OPG carried out an investigation and discovered that G was not providing her mother with any money for clothing or toiletries, which were being provided by the home from its own stocks. A visit and discussion with Mrs B revealed that she was unable to participate in any activities or outings arranged by the home, which she dearly wished to do. Her room was bare of any personal effects and she had limited stocks of underwear and nightwear.

The Police were alerted and interviewed G, who admitted using the proceeds of the mother’s house for her own benefit. The OPG applied to the Court of Protection for suspension of the power of attorney and the appointment of a deputy, who was able to seek recovery of funds and ensure Mrs B’s needs were met.

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14.27 The above case study highlights the need for local authorities not to underestimate the potential impact of financial abuse. It could significantly threaten an adult’s health and wellbeing. Most financial abuse is also capable of amounting to theft or fraud and would be a matter for the police to investigate. It may also require attention and collaboration from a wider group of organisations, including shops and financial institutions such as banks.

14.28 Internet scams, postal scams and doorstep crime are more often than not, targeted at adults at risk and all are forms of financial abuse. These scams are becoming ever more sophisticated and elaborate. For example:

• internet scammers can build very convincing websites
• people can be referred to a website to check the caller’s legitimacy but this may be a copy of a legitimate website
• postal scams are massed-produced letters which are made to look like personal letters or important documents
• doorstep criminals call unannounced at the adult’s home under the guise of legitimate business and offering to fix an often non-existent problem with their property. sometimes they pose as police officers or someone in a position of authority

14.29 In all cases this is financial abuse and the adult at risk can be persuaded to part with large sums of money and in some cases their life savings. These instances should always be reported to the local police service and local authority Trading Standards Services for investigation. The SAB will need to consider how to involve local Trading Standards in its work.

14.30 These scams and crimes can seriously affect the health, including mental health, of an adult at risk. Agencies working together cab better protect adults at risk. Failure to do so can result in an increased cost to the state, especially if the adult at risk loses their income and independence.

14.31 Where the abuse is perpetrated by someone who has the authority to manage an adult’s money, the relevant body should be informed - for example, the Office of the Public Guardian for deputies or attorneys (see para 14.61) and Department for Work and Pensions (DWP) in relation to appointees.

14.32 If anyone has concerns that a DWP appointee is acting incorrectly, they should contact the DWP immediately. Note that the DWP can get things done more quickly if it also has a National Insurance number in addition to a name and address. However, people should not delay acting because they do not know an adult’s National Insurance number. The important thing is to alert DWP to their concerns. If DWP knows that the person is also known to the local authority, then it should also inform the relevant authority.

Who abuses and neglects adults?

14.33 Anyone can perpetrate abuse or neglect, including:

• spouses/partners
• other family members
• neighbours
• friends
• acquaintances
• local residents
• people who deliberately exploit adults they perceive as vulnerable to abuse
• paid staff or professionals and volunteers
• strangers

14.34 While a lot of attention is paid, for example, to targeted fraud or internet scams perpetrated by complete strangers, it is far more likely that the person responsible for abuse is known to the adult and is in a position of trust and power. Read the report on Abuse of Vulnerable Adults in England for more information.

14.35 Abuse can happen anywhere: for example, in someone’s own home, in a public place, in hospital, in a care home or in college. It can take place when an adult lives alone or with others.

Spotting signs of abuse and neglect

14.36 Workers across a wide range of organisations need to be vigilant about adult safeguarding concerns in all walks of life including, amongst others in health and social care, welfare, policing, banking, fire and rescue services and trading standards; leisure services, faith groups, and housing. GPs, in particular, are often well-placed to notice changes in an adult that may indicate they are being abused or neglected. Findings from serious case reviews have sometimes stated that if professionals or other staff had acted upon their concerns or sought more information, then death or serious harm might have been prevented. The following example illustrates that someone who might not typically be thought of, in this case the neighbour, does in fact have an important role to play in identifying when an adult is at risk.

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Case study

Mr A is in his 40s, and lives in a housing association flat, with little family contact. His mental health is relatively stable, following a previous period of hospitalisation and he has visits from a mental health support worker.

He rarely goes out, but he allows people into his accommodation because of his loneliness. The police were alerted by Mr A’s neighbours to several domestic disturbances. His accommodation had been targeted by a number of local people and he had become subjected to verbal, financial and sometime physical abuse. Although Mr A initially insisted they were his friends, he did indicate he was frightened; he attended a case conference with representatives from adult social care, mental health services and the police, from which emerged a plan to strengthen his own self-protective ability as well as to deal with the present abuse.

Mr A has made different arrangements for managing his money so that he does not accumulate large sums at home. A community-based visiting service has been engaged to keep him company through visits to his home, and with time his support worker aims to help get involved in social activities that will bring more positive contacts to allay the loneliness that Mr A sees as his main challenge.

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14.37 Anyone can witness or become aware of information suggesting that abuse and neglect is occurring. The matter may, for example, be raised by a worried neighbour (see above case study), a concerned bank cashier, a GP, a welfare benefits officer, a housing support worker or a nurse on a ward. Primary care staff may be particularly well-placed to spot abuse and neglect, as in many cases they may be the only professionals with whom the adult has contact. The adult may say or do things that hint that all is not well. It may come in the form of a complaint, a call for a police response, an expression of concern, or come to light during a needs assessment. Regardless of how the safeguarding concern is identified, everyone should understand what to do, and where to go locally to get help and advice. It is vital that professionals, other staff and members of the public are vigilant on behalf of those unable to protect themselves. This will include:

• knowing about different types of abuse and neglect and their signs
• supporting adults to keep safe
• knowing who to tell about suspected abuse or neglect
• supporting adults to think and weigh up the risks and benefits of different options when exercising choice and control

14.38 Awareness campaigns for the general public and multi-agency training for all staff will contribute to achieving these objectives.

Reporting and responding to abuse and neglect

14.39 It is important to understand the circumstances of abuse, including the wider context such as whether others may be at risk of abuse, whether there is any emerging pattern of abuse, whether others have witnessed abuse and the role of family members and paid staff or professionals.

14.40 The circumstances surrounding any actual or suspected case of abuse or neglect will inform the response. For example, it is important to recognise that abuse or neglect may be unintentional and may arise because a carer is struggling to care for another person. This makes the need to take action no less important, but in such circumstances, an appropriate response could be a support package for the carer and monitoring. However, the primary focus must still be how to safeguard the adult.

14.41 In other circumstances where the safeguarding concerns arise from abuse or neglect, then it would not only be necessary to immediately consider what steps are needed to protect the adult but also whether to refer the matter to the police to consider whether a criminal investigation would be required or is appropriate. It should be remembered that abuse may consist of a single or repeated act. It may be physical, verbal or psychological, an act of neglect or an omission to act. Defining abuse can be complex but it can involve an intentional, reckless, deliberate or dishonest act by the perpetrator. In any case where you encounter abuse and you are uncertain about your next steps, you should contact the police for advice.

14.42 The nature and timing of the intervention and who is best placed to lead will be, in part, determined by the circumstances. For example, where there is poor, neglectful care or practice, resulting in pressure sores for example, then an employer-led disciplinary response may be more appropriate; but this situation will need additional responses such as clinical intervention to improve the care given immediately and a clinical audit of practice. Commissioning or regulatory enforcement action may also be appropriate.

14.43 Early sharing of information is the key to providing an effective response where there are emerging concerns (see sections on information sharing, para. 14.179) and confidentiality, para. 14.186). To ensure effective safeguarding arrangements:

1. 1. All organisations must have arrangements in place which set out clearly the processes and the principles for sharing information between each other, with other professionals and the SAB; this could be via an Information Sharing Agreement to formalise the arrangements.

2. 2. No professional should assume that someone else will pass on information which they think may be critical to the safety and wellbeing of the adult. If a professional has concerns about the adult’s welfare and believes they are suffering or likely to suffer abuse or neglect, then they should share the information with the local authority and, or, the police if they believe or suspect that a crime has been committed.

14.44 Local authorities may choose to undertake safeguarding enquiries for people where there is not a section 42 enquiry duty, if the local authority believes it is proportionate to do so, and will enable the local authority to promote the person’s wellbeing and support a preventative agenda.

Carers and safeguarding

14.45 Circumstances in which a carer (for example, a family member or friend) could be involved in a situation that may require a safeguarding response include:

• a carer may witness or speak up about abuse or neglect
• a carer may experience intentional or unintentional harm from the adult they are trying to support or from professionals and organisations they are in contact with
• a carer may unintentionally or intentionally harm or neglect the adult they support on their own or with others

14.46 Assessment of both the carer and the adult they care for must include consideration of the wellbeing of both people. Section 1 of the Care Act includes protection from abuse and neglect as part of the definition of wellbeing. As such, a needs or carer’s assessment is an important opportunity to explore the individuals’ circumstances and consider whether it would be possible to provide information, or support that prevents abuse or neglect from occurring, for example, by providing training to the carer about the condition that the adult they care for has or to support them to care more safely. Where that is necessary the local authority should make arrangements for providing it.

14.47 If a carer speaks up about abuse or neglect, it is essential that they are listened to and that where appropriate a safeguarding enquiry is undertaken and other agencies are involved as appropriate.

14.48 If a carer experiences intentional or unintentional harm from the adult they are supporting, or if a carer unintentionally or intentionally harms or neglects the adult they support, consideration should be given to:

• whether, as part of the assessment and support planning process for the carer and, or, the adult they care for, support can be provided that removes or mitigates the risk of abuse. For example, the provision of training or information or other support that minimises the stress experienced by the carer. In some circumstances the carer may need to have independent representation or advocacy; in others, a carer may benefit from having such support if they are under great stress or similar
• whether other agencies should be involved; in some circumstances where a criminal offence is suspected this will include alerting the police, or in others the primary healthcare services may need to be involved in monitoring

14.49 Other key considerations in relation to carers should include:

• involving carers in safeguarding enquiries relating to the adult they care for, as appropriate
• whether or not joint assessment is appropriate in each individual circumstance
• the risk factors that may increase the likelihood of abuse or neglect occurring
• whether a change in circumstance changes the risk of abuse or neglect occurring

14.50 A change in circumstance should also trigger the review of the care and support plan and, or, support plan. Further information about these considerations can be found in an ADASS paper on carers and safeguarding.

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Case study

Mrs D lives with her husband, B. B has a long term brain injury which affects his mood, behaviour and his ability to manage close family relationships. This has often led to him shouting and hitting out at his wife, who is also his main informal carer. Mrs D told a professional who was involved in supporting her that she was becoming increasingly frightened by B’s physical and verbal outbursts and at times feared for her personal safety.

Other family members were unaware of the extent of the harm and that Mrs D was exhausted and considering leaving the situation. The local authority became involved.

The situation presented significant personal risk to Mrs D but there was also a risk of fragmenting relationships if the local authority staff were not sensitive to the needs of the whole family. The practitioner, under supervision from her social work manager invested time in meeting with Mrs D to explore her preferences around managing her safety and how information about the situation would be communicated with the wider family and with B. This presented dilemmas around balancing the local authority’s duty of care towards

Mrs D with her wishes to remain in the situation with B. Placing emphasis on the latter inevitably meant that Mrs D would not be entirely free from the risk of harm but allowed the practitioner to explore help and support options which would enable Mrs D to manage and sustain her safety at a level which was acceptable to her.

The practitioner received regular supervision to allow time to reflect on the support being offered and to ensure that it was ‘person centred’. The outcome for Mrs D was that she was able to continue to care for B by working in partnership with the local authority. The practitioner offered advice about how to safely access help in an emergency and helped her to develop strategies to manage her own safety – this included staff building rapport with B, building on his strengths and desire to participate in social activities outside the family home. The effect of this was that some of the trigger points of him being at home with his wife for sustained periods during the day were reduced because he was there less.

Mrs D also had a number of pre-existing support avenues, including counselling and a good relationship with her son and her friends. The situation will be reviewed regularly with Mrs D but for the time being she feels much more able to manage.

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Adult safeguarding procedures

14.51 In order to respond appropriately where abuse or neglect may be taking place, anyone in contact with the adult, whether in a volunteer or paid role, must understand their own role and responsibility and have access to practical and legal guidance, advice and support. This will include understanding local inter-agency policies and procedures.

14.52 In any organisation, there should be adult safeguarding policies and procedures. These should reflect this statutory guidance and the decision making tree diagram 1B (following para. 14.92) and are for use locally to support the reduction or removal of safeguarding risks, as well as to secure any support to protect the adult and, where necessary, to help the adult recover and develop resilience. Such policies and procedures should assist those working with adults how to develop swift and personalised safeguarding responses and how to involve adults in this decision making. This, in turn, should encourage proportionate responses and improve outcomes for the people concerned. Procedures may include:

• a statement of purpose relating to promoting wellbeing, preventing harm and responding effectively if concerns are raised
• a statement of roles and responsibility, authority and accountability sufficiently specific to ensure that all staff and volunteers understand their role and limitations
• a statement of the procedures for dealing with allegations of abuse, including those for dealing with emergencies by ensuring immediate safety, the processes for initially assessing abuse and neglect and deciding when intervention is appropriate, and the arrangements for reporting to the police, urgently when necessary
• a full list of points of referral indicating how to access support and advice at all times, whether in normal working hours or outside them, with a comprehensive list of contact addresses and telephone numbers, including relevant national and local voluntary bodies
• an indication of how to record allegations of abuse and neglect, any enquiry and all subsequent action
• a list of sources of expert advice
• a full description of channels of inter-agency communication and procedures for information sharing and for decision making
• a list of all services which might offer access to support or redress
• how professional disagreements are resolved especially with regard to whether decisions should be made, enquiries undertaken for example

14.53 The SAB should keep policies and procedures under review and report on these in the annual report as necessary. Procedures should be updated to incorporate learning from published research, peer reviews, case law and lessons from recent cases and Safeguarding Adults Reviews. The procedures should also include the provisions of the law – criminal, civil and statutory – relevant to adult safeguarding. This should include local or agency specific information about obtaining legal advice and access to appropriate remedies.

14.54 The Care Act requires that each local authority must arrange for an independent advocate to represent and support an adult who is the subject of a safeguarding enquiry or Safeguarding Adult Review where the adult has ‘substantial difficulty’ in being involved in the process and where there is no other suitable person to represent and support them (see Chapter 7).

The Mental Capacity Act 2005

14.55 People must be assumed to have capacity to make their own decisions and be given all practicable help before anyone treats them as not being able to make their own decisions. Where an adult is found to lack capacity to make a decision then any action taken, or any decision made for, or on their behalf, must be made in their best interests.

14.56 Professionals and other staff need to understand and always work in line with the Mental Capacity Act 2005 (MCA). They should use their professional judgement and balance many competing views. They will need considerable guidance and support from their employers if they are to help adults manage risk in ways and put them in control of decision-making if possible.

14.57 Regular face-to-face supervision from skilled managers is essential to enable staff to work confidently and competently in difficult and sensitive situations.

14.58 Mental capacity is frequently raised in relation to adult safeguarding. The requirement to apply the MCA in adult safeguarding enquiries challenges many professionals and requires utmost care, particularly where it appears an adult has capacity for making specific decisions that nevertheless places them at risk of being abused or neglected.

14.59 The MCA created the criminal offences of ill-treatment and wilful neglect in respect of people who lack the ability to make decisions. The offences can be committed by anyone responsible for that adult’s care and support – paid staff but also family carers as well as people who have the legal authority to act on that adult’s behalf (for example, persons with power of attorney or Court-appointed deputies).

14.60 These offences are punishable by fines or imprisonment. Ill-treatment covers both deliberate acts of ill-treatment and also those acts which are reckless which results in ill-treatment. Wilful neglect requires a serious departure from the required standards of treatment and usually means that a person has deliberately failed to carry out an act that they knew they were under a duty to perform.

14.61 Abuse by an attorney or deputy: If someone has concerns about the actions of an attorney acting under a registered enduring power of attorney (EPA) or lasting power of attorney (LPA), or a deputy appointed by the Court of Protection, they should contact the Office of the Public Guardian (OPG). The OPG can investigate the actions of a Deputy or Attorney and can also refer concerns to other relevant agencies. When it makes a referral, the OPG will make sure that the relevant agency keeps it informed of the action it takes. The OPG can also make an application to the Court of Protection if it needs to take possible action against the attorney or deputy. Whilst the OPG primarily investigates financial abuse, it is important to note that that it also has a duty to investigate concerns about the actions of an attorney acting under a health and welfare Lasting Power of Attorney or a personal welfare deputy. The OPG can investigate concerns about an attorney acting under a registered EPA or LPA, regardless of the adult’s capacity to make decisions. Read about the role and powers of the OPG and its policy in relation to adult safeguarding.

Multi-agency safeguarding role

Preventing abuse and neglect

14.62 The provisions of the Care Act are intended to promote and secure wellbeing. Under the definition of wellbeing (see Chapter 1, Para 1.5), it is made clear that protection from abuse and neglect is a fundamental part of that. Identification and management of risk is an essential part of the assessment process; the risk to an adult of abuse or neglect should be considered at this point.

14.63 Local authorities must cooperate with each of their relevant partners, as described in section 6(7) of the Care Act, and those partners must also cooperate with the local authority, in the exercise of their functions relevant to care and support including those to protect adults (see also chapter 15 which sets out general responsibilities in relation to co-operation).

14.64 Relevant partners of a local authority include any other local authority with whom they agree it would be appropriate to co-operate (for example, neighbouring authorities with whom they provide joint shared services) and the following agencies or bodies who operate within the local authority’s area including:

• NHS England
• CCGs
• NHS trusts and NHS foundation trusts
• Department for Work and Pensions
• the police
• prisons
• probation services

14.65 Local authorities must also co-operate with such other agencies or bodies as it considers appropriate in the exercise of its adult safeguarding functions, including (but not limited to) those listed in section 6(3):

• general practitioners
• dentists
• pharmacists
• NHS hospitals
• housing, health and care providers

14.66 Agencies should stress the need for preventing abuse and neglect wherever possible. Observant professionals and other staff making early, positive interventions with individuals and families can make a huge difference to their lives, preventing the deterioration of a situation or breakdown of a support network. It is often when people become increasingly isolated and cut off from families and friends that they become extremely vulnerable to abuse and neglect. Agencies should implement robust risk management processes in order to prevent concerns escalating to a crisis point and requiring intervention under safeguarding adult procedures.

14.67 Partners should ensure that they have the mechanisms in place that enable early identification and assessment of risk through timely information sharing and targeted multi-agency intervention. Multi-agency safeguarding hubs may be one model to support this but are not the only one. Policies and strategies for safeguarding adults should include measures to minimise the circumstances, including isolation, which make adults vulnerable to abuse.

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Case study

Miss P’s mental health social worker became concerned when she had received reports that 2 of Miss P’s associates were visiting more regularly and sometimes staying over at her flat. Miss P was being coerced into prostitution and reportedly being physically assaulted by one of the men visiting her flat. There was also concern that she was being financially exploited. Miss P’s lack of understanding of how to protect herself when livng alone was exacerbated by her mental health needs and consequent inability to set safe boundaries with the people she was associating with.

The social worker recognised that the most appropriate way to enable Miss P to manage the risk of harm was to involve Miss P’s family, which she agreed to, and other professionals to develop and coordinate a plan which would enable her to continue living independently but provide a safety net for when the risk of harm became heightened. Guided initially by Miss P’s wish for the 2 men to stay away from her, the social worker initiated a planning meeting between supportive family members and other professionals such as the police, domestic violence workers, support workers and housing officers. Although Miss P herself felt unable to attend the planning meeting, her social worker ensured that her views were included and helped guide the plan. The meeting allowed family and professionals to work in partnership, to openly share information about the risks and to plan what support Miss P needed to safely maintain her independence.

Tasks were divided between the police, family members and specialist support workers. The social worker had a role in ensuring that the plan was coordinated properly and that Miss P was fully aware of everyone’s role. Miss P’s family were crucial to the success of the plan as they had always supported her and were able to advocate for her needs.

They also had a trusting relationship with her and were able to notify the police and other professionals if they thought that the risk to Miss P was increasing. The police played an active role in monitoring and preventing criminal activity towards Miss P and ensured that they kept all of the other professionals and family up to date with what was happening. Miss P is working with a domestic violence specialist to help her develop personal strategies to keep safer and her support worker is helping her to build resilience through community support and activities.

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Responding to abuse and neglect in a regulated care setting

14.68 It is important that all partners are clear where responsibility lies where abuse or neglect is carried out by employees or in a regulated setting, such as a care home, hospital, or college. The first responsibility to act must be with the employing organisation as provider of the service. However, social workers or counsellors may need to be involved in order to support the adult to recover.

14.69 When an employer is aware of abuse or neglect in their organisation, then they are under a duty to correct this and protect the adult from harm as soon as possible and inform the local authority, CQC and CCG where the latter is the commissioner. Where a local authority has reasonable cause to suspect that an adult may be experiencing or at risk of abuse or neglect, then it is still under a duty to make (or cause to be made) whatever enquiries it thinks necessary to decide what if any action needs to be taken and by whom. The local authority may well be reassured by the employer’s response so that no further action is required. However, a local authority would have to satisfy itself that an employer’s response has been sufficient to deal with the safeguarding issue and, if not, to undertake any enquiry of its own and any appropriate follow up action (for example, referral to CQC, professional regulators).

14.70 The employer should investigate any concern (and provide any additional support that the adult may need) unless there is compelling reason why it is inappropriate or unsafe to do this. For example, this could be a serious conflict of interest on the part of the employer, concerns having been raised about non-effective past enquiries or serious, multiple concerns, or a matter that requires investigation by the police.

14.71 An example of a conflict of interest where it is better for an external person to be appointed to investigate may be the case of a family-run business where institutional abuse is alleged, or where the manager or owner of the service is implicated. The circumstances where an external person would be required should be set out in the local multi-agency procedures. All those carrying out such enquiries should have received appropriate training.

14.72 There should be a clear understanding between partners at a local level when other agencies such as the local authority, CQC or CCG need to be notified or involved and what role they have. ADASS, CQC, LGA, NPCC (formerly ACPO) and NHS England have jointly produced a high level guide on these roles and responsibilities. ^{[footnote 56]} The focus should be on promoting the wellbeing of those adults at risk.

14.73 Commissioners of care or other professionals should only use safeguarding procedures in a way that reflects the principles above not as a means of intimidating providers or families. Transparency, open-mindedness and timeliness are important features of fair and effective safeguarding enquiries. CQC and commissioners have alternative means of raising standards of service, including support for staff training, contract compliance and, in the case of CQC; enforcement powers may be used.

14.74 Commissioners should encourage an open culture around safeguarding, working in partnership with providers to ensure the best outcome for the adult. A disciplinary investigation, and potentially a hearing, may result in the employer taking informal or formal measures which may include dismissal and possibly referral to the Disclosure and Barring Service.

14.75 If someone is removed by being either dismissed or redeployed to a non-regulated activity, from their role providing regulated activity following a safeguarding incident, or a person leaves their role (resignation, retirement) to avoid a disciplinary hearing following a safeguarding incident and the employer/volunteer organisation feels they would have dismissed the person based on the information they hold, the regulated activity provider has a legal duty to refer to the Disclosure and Barring Service. If an agency or personnel supplier has provided the person, then the legal duty sits with that agency. In circumstances where these actions are not undertaken then the local authority can make such a referral.

Local authority’s role in carrying out enquiries

14.76 Local authorities must make enquiries, or cause others to do so, if they reasonably suspect an adult who meets the criteria at paragraph 14.2 is, or is at risk of, being abused or neglected.

14.77 An enquiry is the action taken or instigated by the local authority in response to a concern that abuse or neglect may be taking place. An enquiry could range from a conversation with the adult, or if they lack capacity, or have substantial difficulty in understanding the enquiry their representative or advocate, prior to initiating a formal enquiry under section 42, right through to a much more formal multi-agency plan or course of action. Whatever the course of subsequent action, the professional concerned should record the concern, the adult’s views, wishes, and any immediate action has taken and the reasons for those actions.

14.78 The purpose of the enquiry is to decide whether or not the local authority or another organisation, or person, should do something to help and protect the adult. If the local authority decides that another organisation should make the enquiry, for example a care provider, then the local authority should be clear about timescales, the need to know the outcomes of the enquiry and what action will follow if this is not done.

14.79 What happens as a result of an enquiry should reflect the adult‘s wishes wherever possible, as stated by them or by their representative or advocate. If they lack capacity it should be in their best interests if they are not able to make the decision, and be proportionate to the level of concern.

14.80 The adult should always be involved from the beginning of the enquiry unless there are exceptional circumstances that would increase the risk of abuse. If the adult has substantial difficulty in being involved, and where there is no one appropriate to support them, then the local authority must arrange for an independent advocate to represent them for the purpose of facilitating their involvement.

14.81 Professionals and other staff need to handle enquiries in a sensitive and skilled way to ensure distress to the adult is minimised. It is likely that many enquiries will require the input and supervision of a social worker, particularly the more complex situations and to support the adult to realise the outcomes they want and to reach a resolution or recovery. For example, where abuse or neglect is suspected within a family or informal relationship it is likely that a social worker will be the most appropriate lead. Personal and family relationships within community settings can prove both difficult and complex to assess and intervene in. The dynamics of personal relationships can be extremely difficult to judge and rebalance. For example, an adult may make a choice to be in a relationship that causes them emotional distress which outweighs, for them, the unhappiness of not maintaining the relationship.

14.82 Whilst work with the adult may frequently require the input of a social worker, other aspects of enquiries may be best undertaken by others with more appropriate skills and knowledge. For example, health professionals should undertake enquiries and treatment plans relating to medicines management or pressure sores.

Criminal offences and adult safeguarding

14.83 Everyone is entitled to the protection of the law and access to justice. Behaviour which amounts to abuse and neglect, for example physical or sexual assault or rape, psychological abuse or hate crime, wilful neglect, unlawful imprisonment, theft and fraud and certain forms of discrimination also often constitute specific criminal offences under various pieces of legislation. Although the local authority has the lead role in making enquiries, where criminal activity is suspected, then the early involvement of the police is likely to have benefits in many cases.

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Case study

Miss Y is a young woman with a learning disability with limited support from her family and was not engaged with health and social care services. Miss Y was befriended by an individual who took her to parties where she was given drugs and alcohol and forced to have sex with different men. Sometimes she would be given money or gifts in return for having sex with the men.

Miss Y disclosed this to a social worker and it was discovered that there were a number of young people and vulnerable adults who were being sexually exploited by multiple perpetrators. Miss Y lacked mental capacity in order to be able to consent to having sex, as well as in relation to her accommodation, finances or personal safety.

The perpetrators sought out Miss Y and others because of their perceived vulnerability – whether that was because of their isolated situation and social circumstances coupled with age, disability, mental illness, or their previous history as a victim of abuse. The process to safeguard Miss Y involved a coordinated response between the police, social care, health and voluntary and community sector organisations.

This included the police investigating the perpetrators for rape, sexual assault, trafficking and drug offences. The Court of Protection and Deprivation of Liberty Safeguards were also used initially to safeguard Miss Y.

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14.84 For the purpose of court proceedings, a witness is competent if they can understand the questions and respond in a way that the court can understand. Police have a duty under legislation to assist those witnesses who are vulnerable and intimidated. A range of special measures are available to facilitate the gathering and giving of evidence by vulnerable and intimidated witnesses. Consideration of specials measures should occur from the onset of a police investigation. In particular:

• immediate referral or consultation with the police will enable the police to establish whether a criminal act has been committed and this will give an opportunity of determining if, and at what stage, the police need to become involved further and undertake a criminal investigation
• the police have powers to initiate specific protective actions which may apply, such as Domestic Violence Protection Orders (DVPO)
• a higher standard of proof is required in criminal proceedings (‘beyond reasonable doubt’) than in disciplinary or regulatory proceedings (where the test is the balance of probabilities) and so early contact with police may assist in obtaining and securing evidence and witness statements
• early involvement of the police will help ensure that forensic evidence is not lost or contaminated
• police officers need to have considerable skill in investigating and interviewing adults with a range of disabilities and communication needs if early involvement is to prevent the adult being interviewed unnecessarily on subsequent occasions. Research has found that sometimes evidence from victims and witnesses with learning disabilities is discounted. This may also be true of others such as people with dementia. It is crucial that reasonable adjustments are made and appropriate support given, so people can get equal access to justice
• police investigations should be coordinated with health and social care enquiries but they may take priority
• guidance should include reference to support relating to criminal justice matters which is available locally from such organisations as Victim Support and court preparation schemes
• some witnesses will need protection
• the police may be able to get victim support in place

14.85 Special Measures were introduced through legislation in the Youth Justice and Criminal Evidence Act 1999 (YJCEA) and include a range of measures to support witnesses to give their best evidence and to help reduce some of the anxiety when attending court. Measures in place include the use of screens around the witness box, the use of live-link or recorded evidence-in-chief and the use of an intermediary to help witnesses understand the questions they are being asked and to give their answers accurately.

14.86 Vulnerable adult witnesses (S.16 YJCEA) have one of the following:

• mental disorder
• learning disability
• physical disability

14.87 These witnesses are only eligible for special measures if the quality of evidence that is given by them is likely to be diminished by reason of the disorder or disability.

14.88 Intimidated Witnesses (S17 YJCEA 99): Intimidated witnesses are defined by Section 17 of the Act as those whose quality of evidence is likely to be diminished by reason of fear or distress. In determining whether a witness falls into this category the court takes account of:

• the nature and alleged circumstances of the offence
• the age of the witness
• the social and cultural background and ethnic origins of the witness
• the domestic and employment circumstances of the witness
• any religious beliefs or political opinions of the witness
• any behaviour towards the witness by the accused or third party.

14.89 Also falling into this category are:

• complainants in cases of sexual assault
• witnesses to specified gun and knife offences
• victims of and witnesses to domestic violence, racially motivated crime, crime motivated by reasons relating to religion, homophobic crime, gang related violence and repeat victimisation
• those who are older and frail
• the families of homicide victims

14.90 Registered Intermediaries (RIs) have been facilitating communication with vulnerable witnesses in the criminal justice system in England and Wales since 2004.

14.91 A criminal investigation by the police takes priority over all other enquiries, although a multi-agency approach should be agreed to ensure that the interests and personal wishes of the adult will be considered throughout, even if they do not wish to provide any evidence or support a prosecution. The welfare of the adult and others, including children, is paramount and requires continued risk assessment to ensure the outcome is in their interests and enhances their wellbeing.

14.92 If the adult has the mental capacity to make informed decisions about their safety and they do not want any action to be taken, this does not preclude the sharing of information with relevant professional colleagues. This is to enable professionals to assess the risk of harm and to be confident that the adult is not being unduly influenced, coerced or intimidated and is aware of all the options. This will also enable professionals to check the safety and validity of decisions made. It is good practice to inform the adult that this action is being taken unless doing so would increase the risk of harm.

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Case study

Mr P has mild learning disabilities. The safeguarding concern was financial and other abuse and neglect by his brother, with whom he lived. His support worker had noticed that Mr P had begun to appear agitated and anxious, that he looked increasingly unkempt and that he was often without money; then he suddenly stopped attending his day centre.

When the support worker and the safeguarding officer followed up, Mr P told them that at times he was not allowed out at all by his brother and was confined to his bedroom. He was only allowed to use the bathroom when his brother said he could, and often didn’t get enough to eat. He was also very worried because his bank card no longer worked, and he had no money, so couldn’t buy food for himself.

Mr P consented to move to temporary accommodation, and a case conference was held, which he attended with an advocate. At his request a move to a supported living flat was arranged and his belongings were retrieved from his brother’s property. His bank account had been emptied by his brother, so he has made new arrangements for his money.

The police are investigating both the financial abuse and the harm Mr P suffered at his brother’s hands. He has begun to talk about his experiences and is gradually regaining his confidence.

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Information gathering

If the issue cannot be resolved through these means or the adult remains at risk of abuse or neglect (real or suspected) then the local authority’s enquiry duty under section 42 continues until it decides what action is necessary to protect the adult and by whom and ensures itself that this action has been taken.

Principles for local decision making process:

• empowerment: presumption of person led decisions and informed consent
• prevention: it is better to take action before harm occurs
• proportionate and least intrusive response appropriate to the risk presented
• protection: support and representation for those in greatest need
• partnership: local solutions through services working with their communities
• communities: have a part to play in preventing, detecting and reporting neglect and abuse
• accountability and transparency in delivering safeguarding
• feeding back whenever possible

Procedures for responding in individual cases

When should an enquiry take place?

14.93 Local authorities must make enquiries, or cause another agency to do so, whenever abuse or neglect are suspected in relation to an adult and the local authority thinks it necessary to enable it to decide what (if any) action is needed to help and protect the adult. The scope of that enquiry, who leads it and its nature, and how long it takes, will depend on the particular circumstances. It will usually start with asking the adult their view and wishes which will often determine what next steps to take. Everyone involved in an enquiry must focus on improving the adult’s well-being and work together to that shared aim. At this stage, the local authority also has a duty to consider whether the adult requires an independent advocate to represent and support the adult in the enquiry. See diagrams 1A and 1B following para. 14.92, which highlight appropriate pauses for reflection, consideration and professional judgment and reflect the different routes and actions that might be taken.

Objectives of an enquiry

14.94 The objectives of an enquiry into abuse or neglect are to:

• establish facts
• ascertain the adult’s views and wishes
• assess the needs of the adult for protection, support and redress and how they might be met
• protect from the abuse and neglect, in accordance with the wishes of the adult;
• make decisions as to what follow-up action should be taken with regard to the person or organisation responsible for the abuse or neglect
• enable the adult to achieve resolution and recovery

14.95 The first priority should always be to ensure the safety and well-being of the adult. The adult should experience the safeguarding process as empowering and supportive. Practitioners should wherever practicable seek the consent of the adult before taking action. However, there may be circumstances when consent cannot be obtained because the adult lacks the capacity to give it, but it is in their best interests to undertake an enquiry. Whether or not the adult has capacity to give consent, action may need to be taken if others are or will be put at risk if nothing is done or where it is in the public interest to take action because a criminal offence has occurred. It is the responsibility of all staff and members of the public to act on any suspicion or evidence of abuse or neglect and to pass on their concerns to a responsible person or agency.  

From BMA adult safeguarding toolkit:

…where a competent adult explicitly refuses any supporting intervention, this should normally be respected. Exceptions to this may be where a criminal offence may have taken place or where there may be a significant risk of harm to a third party. If, for example, there may be an abusive adult in a position of authority in relation to other vulnerable adults [sic], it may be appropriate to breach confidentiality and disclose information to an appropriate authority. Where a criminal offence is suspected it may also be necessary to take legal advice. Ongoing support should also be offered. Because an adult initially refuses the offer of assistance he or she should not therefore be lost to or abandoned by relevant services. The situation should be monitored and the individual informed that she or he can take up the offer of assistance at any time.

What should an enquiry take into account?

14.96 The wishes of the adult are very important, particularly where they have capacity to make decisions about their safeguarding. The wishes of those that lack capacity are of equal importance. Wishes need to be balanced alongside wider considerations such as the level of risk or risk to others including any children affected. All adults at risk, regardless of whether they have capacity or not may want highly intrusive help, such as the barring of a person from their home, or a person to be brought to justice or they may wish to be helped in less intrusive ways, such as through the provision of advice as to the various options available to them and the risks and advantages of these various options.

14.97 Where an adult lacks capacity to make decisions about their safeguarding plans, then a range of options should be identified, which help the adult stay as much in control of their life as possible. Wherever possible, the adult should be supported to recognise risks and to manage them. Safeguarding plans should empower the adult as far as possible to make choices and to develop their own capability to respond to them.

14.98 Any intervention in family or personal relationships needs to be carefully considered. While abusive relationships never contribute to the wellbeing of an adult, interventions which remove all contact with family members may also be experienced as abusive interventions and risk breaching the adult’s right to family life if not justified or proportionate. Safeguarding needs to recognise that the right to safety needs to be balanced with other rights, such as rights to liberty and autonomy, and rights to family life. Action might be primarily supportive or therapeutic, or it might involve the application of civil orders, sanctions, suspension, regulatory activity or criminal prosecution, disciplinary action or de-registration from a professional body.

14.99 It is important, when considering the management of any intervention or enquiry, to approach reports of incidents or allegations with an open mind. In considering how to respond the following factors need to be considered:

• the adult’s needs for care and support
• the adult’s risk of abuse or neglect
• the adult’s ability to protect themselves or the ability of their networks to increase the support they offer
• the impact on the adult, their wishes
• the possible impact on important relationships
• potential of action and increasing risk to the adult
• the risk of repeated or increasingly serious acts involving children, or another adult at risk of abuse or neglect
• the responsibility of the person or organisation that has caused the abuse or neglect
• research evidence to support any intervention

Who can carry out an enquiry?

14.100 Although the local authority is the lead agency for making enquiries, it may require others to undertake them. The specific circumstances will often determine who the right person is to begin an enquiry. In many cases a professional who already knows the adult will be the best person. They may be a social worker, a housing support worker, a GP or other health worker such as a community nurse. The local authority retains the responsibility for ensuring that the enquiry is referred to the right place and is acted upon. The local authority, in its lead and coordinating role, should assure itself that the enquiry satisfies its duty under section 42 to decide what action (if any) is necessary to help and protect the adult and by whom and to ensure that such action is taken when necessary. In this role if the local authority has asked someone else to make enquiries, it is able to challenge the body making the enquiry if it considers that the process and/or outcome is unsatisfactory.

14.101 Where a crime is suspected and referred to the police, then the police must lead the criminal investigations, with the local authority’s support where appropriate, for example by providing information and assistance. The local authority has an ongoing duty to promote the wellbeing of the adult in these circumstances.

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Case study

Mr A is 24 and has autism and a mild learning disability. He is a very friendly and sociable young man, who is prone to waving and talking to most people he comes across and who sees everyone as a potential friend. However, he struggles to read the intentions of others and is easily led astray and manipulated.

He lives next door to a pub, where he knows the staff and the regulars. He also lives close to his GP and is able to access his most frequently visited places. He does, however, like to walk into town to talk to people he meets out and about. On such occasions he has been repeatedly tricked into stealing items from a newsagent by a group of teenagers and given large amounts of money away to strangers he strikes up conversations with. Due to his previous experiences, Mr A was identified during a needs assessment as being at risk of abuse and neglect and a safeguarding enquiry was triggered.

The council found that, although Mr A was not currently experiencing abuse or neglect, he remained highly vulnerable to abuse due to his being well-known in his area as someone as easy to manipulate.

To assure his safety in the future, a safeguarding plan was agreed between Mr A and a social worker. This focused on developing his social skills and understanding of relationships and boundaries and the social worker worked with Mr A to consider various support options such as having a buddy or circle of support.

The social worker put Mr A in touch with an autism social group which provided sessions on skills for staying safe. As the group was based in town, Mr A’s plan also included a support worker to accompany him. After the first 5 sessions Mr A was able to attend himself but continued to meet with his support worker on a monthly basis as part of the risk management strategy set out in his safeguarding plan.

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14.102 Employers must ensure that staff, including volunteers, are trained in recognising the symptoms of abuse or neglect, how to respond and where to go for advice and assistance. These are best written down in shared policy documents that can be easily understood and used by all the key organisations.

14.103 Employers must also ensure all staff keep accurate records, stating what the facts are and what are the known opinions of professionals and others and differentiating between fact and opinion. It is vital that the views of the adult are sought and recorded. These should include the outcomes that the adult wants, such as feeling safe at home, access to community facilities, restricted or no contact with certain individuals or pursuing the matter through the criminal justice system.

What happens after an enquiry?

14.104 Once the wishes of the adult have been ascertained and an initial enquiry undertaken, discussions should be undertaken with them as to whether further enquiry is needed and what further action could be taken.

14.105 That action could take a number of courses: it could include disciplinary, complaints or criminal investigations or work by contracts managers and CQC to improve care standards. Those discussions should enable the adult to understand what their options might be and how their wishes might best be realised. Social workers must be able to set out both the civil and criminal justice approaches that are open and other approaches that might help to promote their wellbeing, such as therapeutic or family work, mediation and conflict resolution, peer or circles of support. In complex domestic circumstances, it may take the adult some time to gain the confidence and self-esteem to protect themselves and take action and their wishes may change. The police, health service and others may need to be involved to help ensure these wishes are realised.

Safeguarding plans

14.106 Once the facts have been established, a further discussion of the needs and wishes of the adult is likely to take place. This could be focused safeguarding planning to enable the adult to achieve resolution or recovery, or fuller assessments by health and social care agencies (for example, a needs assessment under the Care Act). This will entail joint discussion, decision taking and planning with the adult for their future safety and well-being. This applies if it is concluded that the allegation is true or otherwise, as many enquiries may be inconclusive.

14.107 The local authority must determine what further action is necessary. Where the local authority determines that it should itself take further action (for example, a protection plan), then the authority would be under a duty to do so.

14.108 The MCA is clear that local authorities must presume that an adult has the capacity to make a decision until there is a reason to suspect that capacity is in some way compromised; the adult is best placed to make choices about their wellbeing which may involve taking certain risks. Of course, where the adult may lack capacity to make decisions about arrangements for enquiries or managing any abusive situation, then their capacity must always be assessed and any decision made in their best interests. If the adult has the capacity to make decisions in this area of their life and declines assistance, this can limit the intervention that organisations can make. The focus should therefore be, on harm reduction. It should not however limit the action that may be required to protect others who are at risk of harm. The potential for ‘undue influence’ will need to be considered if relevant. If the adult is thought to be refusing intervention on the grounds of duress then action must be taken.

14.109 In order to make sound decisions, the adult’s emotional, physical, intellectual and mental capacity in relation to self-determination and consent and any intimidation, misuse of authority or undue influence will have to be assessed. Read the guidance on the Mental Capacity Act: making decisions for information.

Taking action

14.110 Once enquiries are completed, the outcome should be notified to the local authority which should then determine with the adult what, if any, further action is necessary and acceptable. It is for the local authority to determine the appropriateness of the outcome of the enquiry. One outcome of the enquiry may be the formulation of agreed action for the adult which should be recorded on their care plan. This will be the responsibility of the relevant agencies to implement.

14.111 In relation to the adult, this should set out:

• what steps are to be taken to assure their safety in future
• the provision of any support, treatment or therapy including on-going advocacy
• any modifications needed in the way services are provided (for example, same gender care or placement; appointment of an OPG deputy)
• how best to support the adult through any action they take to seek justice or redress;
• any on-going risk management strategy as appropriate
• any action to be taken in relation to the person or organisation that has caused the concern

Person alleged to be responsible for abuse or neglect

14.112 When a complaint or allegation has been made against a member of staff, including people employed by the adult, they should be made aware of their rights under employment legislation and any internal disciplinary procedures.

14.113 Where the person who is alleged to have carried out the abuse themselves has care and support needs and is unable to understand the significance of questions put to them or their replies, they should be assured of their right to the support of an ‘appropriate’ adult if they are questioned in relation to a suspected crime by the police under the Police and Criminal Evidence Act 1984 (PACE). Victims of crime and witnesses may also require the support of an ‘appropriate’ adult. Read government policy documents about helping victims of crime.

14.114 Under the MCA, people who lack capacity and are alleged to be responsible for abuse, are entitled to the help of an Independent Mental Capacity Advocate, to support and represent them in the enquiries that are taking place. This is separate from the decision whether or not to provide the victim of abuse with an independent advocate under the Care Act.

14.115 The Police and Crown Prosecution Service (CPS) should agree procedures with the local authority, care providers, housing providers, and the NHS/CCG to cover the following situations:

• action pending the outcome of the police and the employer’s investigations
• action following a decision to prosecute an individual
• action following a decision not to prosecute
• action pending trial
• responses to both acquittal and conviction

14.116 Employers who are also providers or commissioners of care and support not only have a duty to the adult, but also a responsibility to take action in relation to the employee when allegations of abuse are made against them. Employers should ensure that their disciplinary procedures are compatible with the responsibility to protect adults at risk of abuse or neglect.

14.117 With regard to abuse, neglect and misconduct within a professional relationship, codes of professional conduct and/or employment contracts should be followed and should determine the action that can be taken. Robust employment practices, with checkable references and recent DBS checks are important. Reports of abuse, neglect and misconduct should be investigated and evidence collected.

14.118 Where appropriate, employers should report workers to the statutory and other bodies responsible for professional regulation such as the General Medical Council and the Nursing and Midwifery Council. If someone is removed from their role providing regulated activity following a safeguarding incident the regulated activity provider (or if the person has been provided by an agency or personnel supplier, the legal duty sits with them) has a legal duty to refer to the Disclosure and Barring Service. The legal duty to refer to the Disclosure and Barring Service also applies where a person leaves their role to avoid a disciplinary hearing following a safeguarding incident and the employer/volunteer organisation feels they would have dismissed the person based on the information they hold.

14.119 The standard of proof for prosecution is ‘beyond reasonable doubt’. The standard of proof for internal disciplinary procedures and for discretionary barring consideration by the Disclosure and Barring Service (DBS) and the Vetting and Barring Board is usually the civil standard of ‘on the balance of probabilities’. This means that when criminal procedures are concluded without action being taken this does not automatically mean that regulatory or disciplinary procedures should cease or not be considered. In any event there is a legal duty to make a safeguarding referral to DBS if a person is dismissed or removed from their role due to harm to a child or a vulnerable adult.

Allegations against people in positions of trust

14.120 The local authority’s relevant partners, as set out in section 6 (7) of the Care Act, and those providing universal care and support services, should have clear policies in line with those from the safeguarding adults board for dealing with allegations against people who work, in either a paid or unpaid capacity, with adults with care and support needs. Such policies should make a clear distinction between an allegation, a concern about the quality of care or practice or a complaint.

14.121 Safeguarding adults boards need to establish and agree a framework and process for how allegations against people working with adults with care and support needs (for example, those in positions of trust) should be notified and responded to. Whilst the focus of safeguarding adults work is to safeguard one or more identified adults with care and support needs, there are occasions when incidents are reported that do not involve an adult at risk, but indicate, nevertheless, that a risk may be posed to adults at risk by a person in a position of trust.

14.122 Where such concerns are raised about someone who works with adults with care and support needs, it will be necessary for the employer (or student body or voluntary organisation) to assess any potential risk to adults with care and support needs who use their services, and, if necessary, to take action to safeguard those adults.

14.123 Examples of such concerns could include allegations that relate to a person who works with adults with care and support needs who has:

• behaved in a way that has harmed, or may have harmed an adult or child
• possibly committed a criminal offence against, or related to, an adult or child
• behaved towards an adult or child in a way that indicates they may pose a risk of harm to adults with care and support needs

14.124 When a person’s conduct towards an adult may impact on their suitability to work with or continue to work with children, this must be referred to the local authority’s designated officer.

14.125 If a local authority is given information about such concerns they should give careful consideration to what information should be shared with employers (or student body or voluntary organisation) to enable risk assessment.

14.126 Employers, student bodies and voluntary organisations should have clear procedures in place setting out the process, including timescales, for investigation and what support and advice will be available to individuals against whom allegations have been made. Any allegation against people who work with adults should be reported immediately to a senior manager within the organisation. Employers, student bodies and voluntary organisations should have their own sources of advice (including legal advice) in place for dealing with such concerns.

14.127 If an organisation removes an individual (paid worker or unpaid volunteer) from work with an adult with care and support needs (or would have, had the person not left first) because the person poses a risk of harm to adults, the organisation must make a referral to the Disclosure and Barring Service. It is an offence to fail to make a referral without good reason.

14.128 Allegations against people who work with adults at risk must not be dealt with in isolation. Any corresponding action necessary to address the welfare of adults with care and support needs should be taken without delay and in a coordinated manner, to prevent the need for further safeguarding in future.

14.129 Local authorities should ensure that their safeguarding information and advice services are clear about the responsibilities of employers, student bodies and voluntary organisations, in such cases, and signpost them to their own procedures and legal advice appropriately. Information and advice services should also be equipped to advise on appropriate information sharing and the duty to cooperate under Section 6 of the Care Act.

14.130 Local authorities should ensure that there are appropriate arrangements in place to effectively liaise with the police and other agencies to monitor the progress of cases and ensure that they are dealt with as quickly as possible, consistent with a thorough and fair process.

14.131 Decisions on sharing information must be justifiable and proportionate, based on the potential or actual harm to adults or children at risk and the rationale for decision-making should always be recorded.

14.132 When sharing information about adults, children and young people at risk between agencies it should only be shared:

• where relevant and necessary, not simply all the information held
• with the relevant people who need all or some of the information
• when there is a specific need for the information to be shared at that time

Safeguarding Adults Boards

14.133 Each local authority must set up a Safeguarding Adults Board (SAB). The main objective of a SAB is to assure itself that local safeguarding arrangements and partners act to help and protect adults in its area who meet the criteria set out at paragraph 14.2.

14.134 The SAB has a strategic role that is greater than the sum of the operational duties of the core partners. It oversees and leads adult safeguarding across the locality and will be interested in a range of matters that contribute to the prevention of abuse and neglect. These will include the safety of patients in its local health services, quality of local care and support services, effectiveness of prisons and approved premises in safeguarding offenders and awareness and responsiveness of further education services. The SAB will need intelligence on safeguarding in all providers of health and social care in its locality (not just those with whom its members commission or contract). It is important that SAB partners feel able to challenge each other and other organisations where it believes that their actions or inactions are increasing the risk of abuse or neglect. This will include commissioners, as well as providers of services.

14.135 The SAB can be an important source of advice and assistance, for example in helping others improve their safeguarding mechanisms. It is important that the SAB has effective links with other key partnerships in the locality and share relevant information and work plans. They should consciously cooperate to reduce any duplication and maximise any efficiency, particularly as objectives and membership is likely to overlap.

14.136 A SAB has 3 core duties:

• it must publish a strategic plan for each financial year that sets how it will meet its main objective and what the members will do to achieve this. The plan must be developed with local community involvement, and the SAB must consult the local Healthwatch organisation. The plan should be evidence based and make use of all available evidence and intelligence from partners to form and develop its plan
• it must publish an annual report detailing what the SAB has done during the year to achieve its main objective and implement its strategic plan, and what each member has done to implement the strategy as well as detailing the findings of any safeguarding adults reviews and subsequent action
• it must conduct any safeguarding adults review in accordance with Section 44 of the Act.

14.137 Safeguarding requires collaboration between partners in order to create a framework of inter-agency arrangements. Local authorities and their relevant partners must collaborate and work together as set out in the co-operation duties in the Care Act and, in doing so, must, where appropriate, also consider the wishes and feelings of the adult on whose behalf they are working.

14.138 Local authorities may cooperate with any other body they consider appropriate where it is relevant to their care and support functions. The lead agency with responsibility for coordinating adult safeguarding arrangements is the local authority, but all the members of the SAB should designate a lead officer. Other agencies should also consider the benefits of having a lead for adult safeguarding

14.139 Each SAB should:

• identify the role, responsibility, authority and accountability with regard to the action each agency and professional group should take to ensure the protection of adults
• establish ways of analysing and interrogating data on safeguarding notifications that increase the SAB’s understanding of prevalence of abuse and neglect locally that builds up a picture over time
• establish how it will hold partners to account and gain assurance of the effectiveness of its arrangements
• determine its arrangements for peer review and self-audit
• establish mechanisms for developing policies and strategies for protecting adults which should be formulated, not only in collaboration and consultation with all relevant agencies but also take account of the views of adults who have needs for care and support, their families, advocates and carer representatives
• develop preventative strategies that aim to reduce instances of abuse and neglect in its area
• identify types of circumstances giving grounds for concern and when they should be considered as a referral to the local authority as an enquiry
• formulate guidance about the arrangements for managing adult safeguarding, and dealing with complaints, grievances and professional and administrative malpractice in relation to safeguarding adults
• develop strategies to deal with the impact of issues of race, ethnicity, religion, gender and gender orientation, sexual orientation, age, disadvantage and disability on abuse and neglect
• balance the requirements of confidentiality with the consideration that, to protect adults, it may be necessary to share information on a ‘need-to-know basis’
• identify mechanisms for monitoring and reviewing the implementation and impact of policy and training
• carry out safeguarding adult reviews and determine any publication arrangements;
• produce a strategic plan and an annual report
• evidence how SAB members have challenged one another and held other boards to account
• promote multi-agency training and consider any specialist training that may be required. Consider any scope to jointly commission some training with other partnerships, such as the Community Safety Partnership

14.140 Strategies for the prevention of abuse and neglect is a core responsibility of a SAB and it should have an overview of how this is taking place in the area and how this work ties in with the Health and Wellbeing Board’s, Quality Surveillance Group’s (QSG), Community Safety Partnership’s and CQC’s stated approach and practice. This could be about commissioners and the regulator, together with providers, acting to address poor quality care and the intelligence that indicates there is risk that care may be deteriorating and becoming abusive or neglectful. It could also be about addressing hate crime or anti-social behaviour in a particular neighbourhood. The SAB will need to have effective links and communication across a number of networks in order to make this work effectively.

14.141 Within the context of the duties set out at paragraph 14.2, safeguarding partnerships can be a positive means of addressing issues of self-neglect. The SAB is a multi-agency group that is the appropriate forum where strategic discussions can take place on dealing with what are often complex and challenging situations for practitioners and managers as well as communities more broadly.

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Case study

Recent research has identified ways of working that can have positive outcomes for those who self-neglect. ^{[footnote 57]}

Mr M, in his 70s, lives in an upper-floor council flat, and had hoarded over many years: his own possessions, items inherited from his family home, and materials he had collected from skips and building sites in case they came in useful. The material was piled from floor to ceiling in every room, and Mr M lived in a burrow tunnelled through the middle, with no lighting or heating, apart from a gas stove. Finally, after years of hiding in privacy, Mr M had realised that work being carried out on the building would lead to his living conditions being discovered. Mr M himself recounted how hard it had been for him to invite access to his home, how ashamed and scared he was, and how important his hoard was to him, having learnt as a child of the war never to waste anything.

Through working closely together, Mr M, his support worker and experienced contractors have been able gradually to remove from his flat a very large volume of hoarded material and bring improvements to his home environment. It has taken time and patience, courage and faith, and a strong relationship based on trust. The worker has not judged Mr M, and has worked at his pace, positively affirming his progress. Both Mr M and his support worker acknowledge his low self-esteem, and have connected with his doctor and mental health services. The worker has recognised the need to replace what Mr M is giving up, and has encouraged activities that reflect his interests. Mr M has valued the worker’s honesty, kindness and sensitivity, his ability to listen and the respect and reciprocity within their relationship.

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14.142 Members of a SAB are expected to consider what assistance they can provide in supporting the Board in its work. This might be through payment to the local authority or to a joint fund established by the local authority to provide, for example, secretariat functions for the Board. Members might also support the work of the SAB by providing administrative help, premises for meetings or holding training sessions. It is in all core partners’ interests to have an effective SAB that is resourced adequately to carry out its functions.

14.143 Local SABs decide how they operate but they must ensure that their arrangements will be able to deliver the duties and functions under Schedule 2 of the Care Act.

14.144 The arrangements that the SAB needs to create include for example, how often it meets, the appointment of the chair, any sub-groups to it and other practical arrangements. It also needs to be clear about how it will seek feedback from the local community, particularly those adults who have been involved in a safeguarding enquiry.

Membership of safeguarding adults boards

14.145 The information about how the SAB works should be easily accessible to partner organisations and to the general public. The following organisations must be represented on the Board:

• the local authority which set it up
• the CCGs in the local authority’s area
• the chief officer of police in the local authority’s area

14.146 SABs may also include such other organisations and individuals as the establishing local authority considers appropriate having consulted its SAB partners from the CCG and police. The SAB may wish to invite additional partners to some meetings depending on the specific focus or to participate in its work more generally. Examples include:

• ambulance and fire services
• representatives of providers of health and social care services, including independent providers
• Department for Work and Pensions
• representatives of housing providers, housing support providers, probation and prison services
• general practitioners
• representatives of further education colleges
• members of user, advocacy and carer groups
• local healthwatch
• Care Quality Commission
• representatives of children’s safeguarding boards
• trading standards

14.147 This is not a definitive list, but SABs should assure themselves that the Board has the involvement of all partners necessary to effectively carry out its duties. Additionally, there may also be effective links that can be made with related partnerships to maximise impact and minimise duplication and which would reflect the reality and interconnectivities of local partnerships. There are strong synergies between the work of many of these bodies, particularly when looking at a broader family agenda as well as opportunities for efficiencies in taking forward work. The following example illustrates how a safeguarding children’s board and the domestic abuse board work collaboratively to commission and deliver training.

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Example

A SAB has worked with the domestic abuse Board to develop a Multi-Agency Risk Assessment Conference (MARAC) e-learning package and to commission training in line with the domestic abuse training standards, such as: domestic abuse basic awareness; domestic abuse enhanced awareness; Domestic Abuse, Stalking and Harassment (DASH) and; MARAC awareness.

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14.148 Partnerships may include:

• community safety partnerships
• local children safeguarding boards
• health and wellbeing boards
• quality surveillance groups
• clinical commissioning group boards
• health overview and scrutiny committees (OSCs)

14.149 The local authority which establishes the SAB must ensure that between them, all members of the SAB have the requisite skills and experience necessary for the SAB to act effectively and efficiently to safeguard adults in its area. For example, a social worker’s ability to understand the individual within complex social networks and other systems makes social work input a vital component in SAB arrangements; but the SAB will also require access to medical, nursing and legal expertise. Members who attend in a professional and managerial capacity should be:

• able to present issues clearly in writing and in person
• experienced in the work of their organisation
• knowledgeable about the local area and population
• able to explain their organisation’s priorities
• able to promote the aims of the SAB
• able to commit their organisation to agreed actions
• have a thorough understanding of abuse and neglect and its impact
• understand the pressures facing front line practitioners

14.150 Although it is not a requirement, the local authority should consider appointing an independent chair to the SAB who is not an employee or a member of an agency that is a member of the SAB. The chair has a critical role to lead collaboratively, give advice, support and encouragement but also to offer constructive challenge and hold main partner agencies to account and ensure that interfaces with other strategic functions are effective whilst also acting as a spokesperson for the SAB. An independent chair can provide additional reassurance that the Board has some independence from the local authority and other partners. The chair will be accountable to the chief executive of the local authority as the lead body responsible for establishing the SAB but should be appointed by the local authority in the name of the SAB having consulted all its statutory partners. There is a clear expectation that chairs will keep up to date with, and promote, good practice, developments in case law and research and any other relevant material.

14.151 The SAB must develop clear policies and processes that have been agreed with other interested parties, and that reflect the local service arrangements, roles and responsibilities. It will promote multi-agency training that ensures a common understanding of abuse and neglect, appropriate responses and agree how to work together. Policies will state what organisations and individuals are expected to do where they suspect abuse or neglect. The SAB should also consider any specialist training that is required. A key part of the SAB’s role will be to develop preventative strategies and aiming to reduce instances of abuse and neglect in its area. Members of the SAB should also be clear about how they will contribute the financial and human resources of their organisation to both preventing and responding to abuse and neglect.

SAB strategic plans

14.152 The SAB must publish its strategic plan each financial year. This plan should address both short and longer-term actions and it must set out how it will help adults in its area and what actions each member of the SAB will take to deliver the strategic plan and protect better. This plan could cover 3-5 years in order to enable the Board to plan ahead as long as it is reviewed and updated annually.

14.153 When it is preparing the plan, the SAB must consult the local Healthwatch and involve the local community. The local community has a role to play in the recognition and prevention of abuse and neglect but active and on-going work with the community is needed to tap into this source of support.

14.154 SABs must understand the many and potentially different concerns of the various groups that make up its local community. These might include such things as scams targeted at older householders, bullying and harassment of disabled people, hate crime directed at those with mental health problems, cyber bullying and the sexual exploitation of people who may lack the capacity to understand that they have the right to say no. In order to make the plan understood as widely as possible, it should be free from jargon and written in plain English with an easy read version available.

SAB annual reports

14.155 After the end of each financial year, the SAB must publish an annual report that must clearly state what both the SAB and its members have done to carry out and deliver the objectives and other content of its strategic plan. The reports should have prominence on each core member’s website and be made available to other agencies.

14.156 Specifically, the annual report must provide information about any safeguarding adults reviews (SARs) that the SAB has arranged which are ongoing or have reported in the year (regardless whether they commenced in that year). The report must state what the SAB has done to act on the findings of completed SARs or, where it has decided not to act on a finding, why not.

14.157 The annual report must set out how the SAB is monitoring progress against its policies and intentions to deliver its strategic plan. The SAB should consider the following in coming to its conclusions:

• evidence of community awareness of adult abuse and neglect and how to respond
• analysis of safeguarding data to better understand the reasons that lie behind local data returns and use the information to improve the strategic plan and operational arrangements
• what adults who have experienced the process say and the extent to which the outcomes they wanted (their wishes) have been realised
• what front line practitioners say about outcomes for adults and about their ability to work in a personalised way with those adults
• better reporting of abuse and neglect
• evidence of success of strategies to prevent abuse or neglect
• feedback from local Healthwatch, adults who use care and support services and carers, community groups, advocates, service providers and other partners
• how successful adult safeguarding is at linking with other parts of the system, for example children’s safeguarding, domestic violence, community safety
• the impact of training carried out in this area and analysis of future need; and
• how well agencies are co-operating and collaborating

14.158 Safeguarding forms one of the domains in the Adult Social Care Outcomes Framework (ASCOF). The 2014 to 2015 publication announced the development of a national measure on safeguarding outcomes – one of the first to focus on those who have been through an adult safeguarding enquiry and their views on how the enquiry was dealt with. A set of questions was developed and cognitively tested which formed the basis of a successful pilot survey undertaken by around 40 local authorities in Summer 2014. The report detailing the conclusions of the work and the recommendations for next steps can be found on HSCIC’s website. The Data and Outcomes Board (DOB) are supportive of the conclusions of the work and continue to wish to see the associated ASCOF measure taken forward. Given the resource implications and further development required to ensure the most appropriate measure is found, the indicator will remain a placeholder in forthcoming ASCOF frameworks. The materials and documentation required for local authorities to run the survey independently can be found on HSCIC’s website. Local authorities are encouraged to use them in their safeguarding processes to understand the experience of those involved in the safeguarding enquiry.

14.159 The report is meant to be a document that can be read and understood by anyone. Most SABs are likely to publish these reports on their websites. SABs should consider making the report available in a variety of media. SABs will need to establish ways of publicising the report and actively seeking feedback from communities.

14.160 Every SAB must send a copy of its report to:

• the chief executive and leader of the local authority
• the police and crime commissioner and the chief constable
• the local healthwatch
• the chair of the health and wellbeing board

14.161 It is expected that those organisations will fully consider the contents of the report and how they can improve their contributions to both safeguarding throughout their own organisation and to the joint work of the Board.

Safeguarding adults reviews (SARs)

14.162 SABs must arrange a SAR when an adult in its area dies as a result of abuse or neglect, whether known or suspected, and there is concern that partner agencies could have worked more effectively to protect the adult.

14.163 SABs must also arrange a SAR if an adult in its area has not died, but the SAB knows or suspects that the adult has experienced serious abuse or neglect. In the context of SARs, something can be considered serious abuse or neglect where, for example the individual would have been likely to have died but for an intervention, or has suffered permanent harm or has reduced capacity or quality of life (whether because of physical or psychological effects) as a result of the abuse or neglect. SABs are free to arrange for a SAR in any other situations involving an adult in its area with needs for care and support.

14.164 The SAB should be primarily concerned with weighing up what type of ‘review’ process will promote effective learning and improvement action to prevent future deaths or serious harm occurring again. This may be where a case can provide useful insights into the way organisations are working together to prevent and reduce abuse and neglect of adults. SARs may also be used to explore examples of good practice where this is likely to identify lessons that can be applied to future cases.

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Case study

At the age of 72 years, Ms W, although registered disabled, was an active member in her community often seen helping at community events and visiting the local shops and swimming pool. Ms W had a fall in her home which left her lacking in confidence and fearful that she would fall again. As the winter approached, Ms W spent more time alone at home only venturing to the corner shop to buy groceries. As time passed her house came in disrepair and unhygienic as local youths began throw rubbish, including dog faeces into her front garden.

Within a 5 month period Ms W made 7 complaints to the police about anti-social behaviour in her local area, and on 2 occasions was the victim of criminal damage to the front of her house, where her wheelchair accessibility ramp has been painted by graffiti. The police made a referral to social services. As a result, Ms W was placed on a waiting list for a support service.

Four weeks after she was last seen Ms W committed suicide. A Serious Case Review (SCR) was convened according to the local policy that stated ‘the purpose of an SCR is not to reinvestigate or to apportion blame, but to establish whether there are lessons to be learnt from the circumstances of the case about the way in which local professionals and agencies work together to safeguard vulnerable adults. The published report and recommendations which followed demonstrated the lessons from this case. The resultant action plan included:

• strengthened relationships and information sharing between police officers, health and the local authority
• clear lines of reporting and joint working arrangements with the community safety partnerships
• a robust multi-agency training plan
• a targeted community programme to address anti-social behaviour
• the development of a ‘people’s panel’ as a sub group to the Safeguarding Adults Board which includes people who access services, carers and voluntary groups
• the development of a ‘stay safe’ programme involving local shops where adults at risk of abuse may report their concerns to a trusted member if their community

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14.165 Early discussions need to take place with the adult, family and friends to agree how they wish to be involved. The adult who is the subject of any SAR need not have been in receipt of care and support services for the SAB to arrange a review in relation to them.

14.166 SARs should reflect the 6 safeguarding principles. SABs should agree Terms of Reference for any SAR they arrange and these should be published and openly available. When undertaking SARs the records should either be anonymised through redaction or consent should be sought.

14.167 The following principles should be applied by SABs and their partner organisations to all reviews:

• there should be a culture of continuous learning and improvement across the organisations that work together to safeguard and promote the wellbeing and empowerment of adults, identifying opportunities to draw on what works and promote good practice
• the approach taken to reviews should be proportionate according to the scale and level of complexity of the issues being examined
• reviews of serious cases should be led by individuals who are independent of the case under review and of the organisations whose actions are being reviewed
• professionals should be involved fully in reviews and invited to contribute their perspectives without fear of being blamed for actions they took in good faith
• families should be invited to contribute to reviews. They should understand how they are going to be involved and their expectations should be managed appropriately and sensitively

14.168 SARs should seek to determine what the relevant agencies and individuals involved in the case might have done differently that could have prevented harm or death. This is so that lessons can be learned from the case and those lessons applied to future cases to prevent similar harm occurring again. Its purpose is not to hold any individual or organisation to account. Other processes exist for that, including criminal proceedings, disciplinary procedures, employment law and systems of service and professional regulation, such as CQC and the Nursing and Midwifery Council, the Health and Care Professions Council, and the General Medical Council.

14.169 It is vital, if individuals and organisations are to be able to learn lessons from the past, that reviews are trusted and safe experiences that encourage honesty, transparency and sharing of information to obtain maximum benefit from them. If individuals and their organisations are fearful of SARs their response will be defensive and their participation guarded and partial.

14.170 The process for undertaking SARs should be determined locally according to the specific circumstances of individual circumstances. No one model will be applicable for all cases. The focus must be on what needs to happen to achieve understanding, remedial action and, very often, answers for families and friends of adults who have died or been seriously abused or neglected. The recommendations and action plans from a SAR need to be followed through by the SAB.

14.171 The SAB should ensure that there is appropriate involvement in the review process of professionals and organisations who were involved with the adult. The SAR should also communicate with the adult and, or, their family. In some cases it may be helpful to communicate with the person who caused the abuse or neglect.

14.172 It is expected that those undertaking a SAR will have appropriate skills and experience which should include:

• strong leadership and ability to motivate others
• expert facilitation skills and ability to handle multiple perspectives and potentially sensitive and complex group dynamics
• collaborative problem solving experience and knowledge of participative approaches
• good analytic skills and ability to manage qualitative data
• safeguarding knowledge
• inclined to promote an open, reflective learning culture

14.173 The SAB should aim for completion of a SAR within a reasonable period of time and in any event within 6 months of initiating it, unless there are good reasons for a longer period being required; for example, because of potential prejudice to related court proceedings. Every effort should be made while the SAR is in progress to capture points from the case about improvements needed; and to take corrective action.

Links with other reviews

14.174 When victims of domestic homicide are aged between 16 and 18, there are separate requirements in statutory guidance for both a child Serious Case Review (SCR) and a Domestic Homicide Review (DHR). Where such reviews may be relevant to SAR (for example, because they concern the same perpetrator), consideration should be given to how SARs, DHRs and SCRs can be managed in parallel in the most effective manner possible so that organisations and professionals can learn from the case. For example, considering whether some aspects of the reviews can be commissioned jointly so as to reduce duplication of work for the organisations involved.

14.175 In setting up a SAR the SAB should also consider how the process can dovetail with any other relevant investigations that are running parallel, such as a child SCR or DHR, a criminal investigation or an inquest.

14.176 It may be helpful when running a SAR and DHR or child SCR in parallel to establish at the outset all the relevant areas that need to be addressed, to reduce potential for duplication for families and staff. Any SAR will need to take account of a coroner‘s inquiry, and, or, any criminal investigation related to the case, including disclosure issues, to ensure that relevant information can be shared without incurring significant delay in the review process. It will be the responsibility of the manager of the SAR to ensure contact is made with the Chair of any parallel process in order to minimise avoidable duplication.

Findings from SARs

14.177 The SAB should include the findings from any SAR in its Annual Report and what actions it has taken, or intends to take in relation to those findings. Where the SAB decides not to implement an action then it must state the reason for that decision in the Annual Report. All documentation the SAB receives from registered providers which is relevant to CQC’s regulatory functions will be given to the CQC.

14.178 SAR reports should:

• provide a sound analysis of what happened, why and what action needs to be taken to prevent a reoccurrence, if possible
• be written in plain English
• contain findings of practical value to organisations and professionals

14.179 In the interest of transparency and disseminating learning the SAB should consider publishing the reports within the legal parameters about confidentiality.

Information sharing

Record-keeping

14.180 Good record keeping is a vital component of professional practice. Whenever a complaint or allegation of abuse is made, all agencies should keep clear and accurate records and each agency should identify procedures for incorporating, on receipt of a complaint or allegation, all relevant records into a file to record all action taken. When abuse or neglect is raised managers need to look for past incidents, concerns, risks and patterns. We know that in many situations, abuse and neglect arise from a range of incidents over a period of time. In the case of providers registered with CQC, records of these should be available to service commissioners and the CQC so they can take the necessary action.

14.181 Staff should be given clear direction as to what information should be recorded and in what format. The following questions are a guide:

• What information do staff need to know in order to provide a high quality response to the adult concerned?
• What information do staff need to know in order to keep adults safe under the service’s duty to protect people from harm?
• What information is not necessary?
• What is the basis for any decision to share (or not) information with a third party?

14.182 Records should be kept in such a way that the information can easily be collated for local use and national data collections.

14.183 All agencies should identify arrangements, consistent with principles and rules of fairness, confidentiality and data protection for making records available to those adults affected by, and subject to, an enquiry. If the alleged abuser is using care and support themselves, then information about their involvement in an adult safeguarding enquiry, including the outcome, should be included in their case record. If it is assessed that the individual continues to pose a threat to other people then this should be included in any information that is passed on to service providers or other people who need to know.

14.184 In order to carry out its functions, SABs will need access to information that a wide number of people or other organisations may hold. Some of these may be SAB members, such as the NHS and the police. Others will not be, such as private health and care providers or housing providers/housing support providers or education providers.

14.185 In the past, there have been instances where the withholding of information has prevented organisations being fully able to understand what ‘went wrong’ and so has hindered them identifying, to the best of their ability, the lessons to be applied to prevent or reduce the risks of such cases reoccurring. If someone knows that abuse or neglect is happening they must act upon that knowledge, not wait to be asked for information.

14.186 An SAB may request a person to supply information to it or to another person. The person who receives the request must provide the information to the SAB if:

• the request is made in order to enable or assist the SAB to do its job
• the request is made of a person who is likely to have relevant information and then either:
  • the information requested relates to the person to whom the request is made and their functions or activities
  • the information requested has already been supplied to another person subject to an SAB request for information

Confidentiality

14.187 Agencies should draw up a common agreement relating to confidentiality and setting out the principles governing the sharing of information, based on the welfare of the adult or of other potentially affected adults. Any agreement should be consistent with the principles set out in the Caldicott Review published 2013 (PDF, 777KB) ensuring that:

• information will only be shared on a ‘need to know’ basis when it is in the interests of the adult
• confidentiality must not be confused with secrecy
• informed consent should be obtained but, if this is not possible and other adults are at risk of abuse or neglect, it may be necessary to override the requirement
• it is inappropriate for agencies to give assurances of absolute confidentiality in cases where there are concerns about abuse, particularly in those situations when other adults may be at risk

14.188 Where an adult has refused to consent to information being disclosed for these purposes, then practitioners must consider whether there is an overriding public interest that would justify information sharing (for example, because there is a risk that others are at risk of serious harm) and wherever possible, the appropriate Caldicott Guardian should be involved. Confidentiality: NHS Code of Practice sets out guidance on public interest disclosure.

14.189 Decisions about who needs to know and what needs to be known should be taken on a case by case basis, within agency policies and the constraints of the legal framework.

14.190 Principles of confidentiality designed to safeguard and promote the interests of an adult should not be confused with those designed to protect the management interests of an organisation. These have a legitimate role but must never be allowed to conflict with the welfare of an adult. If it appears to an employee or person in a similar role that such confidentiality rules may be operating against the interests of the adult then a duty arises to make full disclosure in the public interest.

14.191 In certain circumstances, it will be necessary to exchange or disclose personal information which will need to be in accordance with the law on confidentiality and the Data Protection Act 1998 where this applies. The Home Office and the Office of the Information Commissioner have issued general guidance on the preparation and use of information sharing protocols. Information for staff, people who use care and support, carers and the general public

14.192 Information in a range of media should be produced in different, user-friendly formats for people with care and support needs and their carers. These should explain clearly what abuse is and also how to express concern and make a complaint. Adults with care and support needs and carers should be informed that their concern or complaint will be taken seriously, be dealt with independently and that they will be kept involved in the process to the degree that they wish to be. They should be reassured that they will receive help and support in taking action on their own behalf. They should also be advised that they can nominate an advocate or representative to speak and act on their behalf if they wish.

14.193 If an adult has no appropriate person to support them and has substantial difficulty in being involved in the local authority processes, they must be informed of their right to an independent advocate. Where appropriate local authorities should provide information on access to appropriate services such as how to obtain independent legal advice or counselling services for example. The involvement of adults at risk in developing such communication is sensible.

14.194 A number of local SABs or multi-agency safeguarding hubs (MASHs) have developed helpful and accessible information aimed at adults in order that they can protect themselves from abuse, such as the London Borough of Barnet’s ‘Say NO to Abuse booklet. Barnet has also produced a booklet, ‘What happens after you report abuse’.

14.195 All commissioners or providers of services in the public, voluntary or private sectors should disseminate information about the multi-agency policy and procedures. Staff should be made aware through internal guidelines of what to do when they suspect or encounter abuse of adults in vulnerable situations. This should be incorporated in staff manuals or handbooks detailing terms and conditions of appointment and other employment procedures so that individual staff members will be aware of their responsibilities in relation to safeguarding adults.

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Example

Camden has developed a leaflet for carers about the harm they may experience when caring for a relative or friend and the harm they may cause. This was developed in partnership with carers’ organisations and carers themselves, and remains a partnership owned publication.

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14.196 This information should emphasise that all those who express concern will be treated seriously and will receive a positive response from managers.

Local roles and responsibilities

14.197 Roles and responsibilities should be clear and collaboration should take place at all the following levels:

• operational
• supervisory line management
• practice leadership
• strategic leadership within the senior management team
• corporate/cross authority
• chief officers/chief executives
• local authority members and local police and crime commissioners
• commissioners
• providers of services
• voluntary organisations
• regulated professionals

Front line

14.198 Operational front line staff are responsible for identifying and responding to allegations of abuse and substandard practice. Staff at operational level need to share a common view of what types of behaviour may be abuse or neglect and what to do as an initial response to a suspicion or allegation that it is or has occurred. This includes GPs. It is employers’ and commissioners’ duty to set these out clearly and reinforce regularly.

14.199 It is not for front line staff to second-guess the outcome of an enquiry in deciding whether or not to share their concerns. There should be effective and well-publicised ways of escalating concerns where immediate line managers do not take action in response to a concern being raised.

14.200 Concerns about abuse or neglect must be reported whatever the source of harm is. It is imperative that poor or neglectful care is brought to the immediate attention of managers and responded to swiftly, including ensuring immediate safety and well-being of the adult. Where the source of abuse or neglect is a member of staff it is for the employer to take immediate action and record what they have done and why (similarly for volunteers and or students).

14.201 There should be clear arrangements in place about what each agency should contribute at this level. These will cover approaches to enquiries and subsequent courses of action. The local authority is responsible for ensuring effective co-ordination at this level.

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Case study

A resident at a local care home told the district nurse that staff members spoke disrespectfully to her and that there were episodes of her waiting a long time for the call bell to be answered when wanting to use the commode. The resident wished to leave the home as she was very unhappy with the treatment she was receiving, and was regularly distressed and tearful.

The resident was reluctant for a formal safeguarding enquiry to take place, but did agree that the issues could be discussed with the manager. The district nurse negotiated some actions with the manager to promote good practice and address the issues that had been raised. When the district nurse reviewed the situation; the manager at the care home had dealt with the issues appropriately and devised an action plan. The resident stated that she was now happy at the care home – staff ‘couldn’t be more helpful’ - and she no longer wanted to move.

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Line managers’ supervision

14.202 Skilful and knowledgeable supervision focused on outcomes for adults is critically important in safeguarding work. Managers have a central role in ensuring high standards of practice and that practitioners are properly equipped and supported. It is important to recognise that dealing with situations involving abuse and neglect can be stressful and distressing for staff and workplace support should be available.

14.203 Managers need to develop good working relationships with their counterparts in other agencies to improve cooperation locally and swiftly address any differences or difficulties that arise between front line staff or managers.

14.204 They should have access to legal advice when proposed interventions, such as the proposed stopping of contact between family members, or if it is unclear whether proposed serious and/or invasive medical treatment is likely to be in the best interests of the adult who lacks capacity to consent, require applications to the Court of Protection. Practice leadership

14.205 All social workers undertaking work with adults should have access to a source of additional advice and guidance particularly in complex and contentious situations. Principal social workers are often well-placed to perform this role or to ensure that appropriate practice supervision is available.

14.206 Principal social workers in the local authority are responsible for providing professional leadership for social work practice in their organisation and organisations undertaking statutory responsibilities on behalf of the local authority. Practice leaders/principal social workers should ensure that practice is in line with this guidance.

14.207 Making safeguarding personal represents a fundamental shift in social work practice and underpins all healthcare delivery in relation to safeguarding, with a focus on the person not the process. As the professional lead for social work, principal social workers and senior healthcare safeguarding professionals should have a broad knowledge base on safeguarding and making safeguarding personal and are confident in its application in their own and others’ work.

14.208 All providers of healthcare should have in place named professionals, who are a source of additional advice and support in complex and contentious cases within their organisation. There should be a designated professional lead in the CCG, who is a source of advice and support to the governing body in relation to the safeguarding of individuals and is able to act as the lead in the management of complex cases.

14.209 All commissioners and providers of healthcare should ensure that staff have the necessary competences and that training in place to ensure that their staff are able to deliver the service in relation to the safeguarding of individuals. This is strengthened by the development of the safeguarding adults: roles and competences for health care staff - intercollegiate document, which details the levels of training and competencies required for the different groups of staff in the organisations.

14.210 Many of the police investigators involved in safeguarding investigations specially trained for that role and work in specialist units. Each of those units has a set of arrangements to help provide advice and guidance to ensure that a thorough investigation takes place in order to achieve successful outcomes for the individual.

14.211 The police service itself has identified ways that enable non specialist officers to seek advice from supervisors at every stage of the safeguarding process, even when specialist departments are unavailable. Strategic leadership within the senior management team

14.212 Each SAB member agency - local authority, clinical commissioning groups and police, should identify a senior manager to take a lead role in the organisational and in inter-agency arrangements, including the SAB. In order for the Board to be an effective decision-making body providing leadership and accountability, members need to be sufficiently senior within their organisation and have the authority to commit the required resources and able to make strategic decisions. To achieve effective working relationships, based on trust and transparency, the members will need to understand the contexts and restraints within which their counterparts work.

14.213 All police forces in England and Wales have a head of public protection that has strategic management responsibility for all aspects of protecting people in vulnerable situations, including adults at risk. The role of the head of public protection is to build an effective working team and develop a multi-agency approach into alleged offences involving people in vulnerable circumstances. They will also have responsibility for managing and developing policy that ensures standardised processes of investigation and working practice throughout each force. The police and clinical commissioning groups are now represented at a strategic level on every local safeguarding adults board and contact details for the individuals concerned will be available to the Board and all Board members.

Corporate/cross authority roles

14.214 To ensure effective partnership working, each organisation must recognise and accept its role and functions in relation to adult safeguarding. These should be set out in the SAB’s strategic plan as well as its own communication channels. They should also have protocols for mediation and family group conferences and for various forms of dispute resolution.

Chief Officers and Chief Executives

14.215 As chief officer for the leading adult safeguarding agency, the Director of Adult Social Services (DASS) has a particularly important leadership and challenge role to play in adult safeguarding.

14.216 Responsible for promoting prevention, early intervention and partnership working is a key part of a DASS’s role and also critical in the development of effective safeguarding. Taking a personalised approach to adult safeguarding requires a DASS promoting a culture that is person-centred, supports choice and control and aims to tackle inequalities.

14.217 However, all officers, including the chief executive of the local authority, NHS and police chief officers and executives should lead and promote the development of initiatives to improve the prevention, identification and response to abuse and neglect. They need to be aware of and able to respond to national developments and ask searching questions within their own organisations to assure themselves that their systems and practices are effective in recognising and preventing abuse and neglect. The Chief Officers must sign off their organisation’s contributions to the Strategic Plan and Annual reports

14.218 Chief officers should receive regular briefings of case law from the Court of Protection and the High Courts.

Local authority members

14.219 Local authority members need to have a good understanding of the range of abuse and neglect issues that can affect adults and of the importance of balancing safeguarding with empowerment. Local authority members need to understand prevention, proportionate interventions, and the dangers of risk adverse practice and the importance of upholding human rights. Some SABs include elected members and this is one way of increasing awareness of members and ownership at a political level. Others take the view that members are more able to hold their officers to account if they have not been party to Board decision making, though they should always be aware of the work of the SAB. Managers must ensure that members are aware of any critical local issues, whether of an individual nature, matters affecting a service or a particular part of the community.

14.220 In addition, Local Authority Health Scrutiny Functions, such as the Council’s Health Overview and Scrutiny Committee, Health and Wellbeing Boards (HWBs) and Community Safety Partnerships can play a valuable role in assuring local safeguarding measures, and ensuring that SABs are accountable to local communities. Similarly, local Health and Wellbeing Boards provide leadership to the local health and wellbeing system; ensure strong partnership working between local government and the local NHS; and ensure that the needs and views of local communities are represented. HWBs can therefore play a key role in assurance and accountability of SABs and local safeguarding measures. Equally SABs may on occasion challenge the decisions of HWBs from that perspective.

Commissioners

14.221 Commissioners from the local authority, NHS and CCGs are all vital to promoting adult safeguarding. Commissioners have a responsibility to assure themselves of the quality and safety of the organisations they place contracts with and ensure that those contracts have explicit clauses that holds the providers to account for preventing and dealing promptly and appropriately with any example of abuse and neglect.

Providers of services

14.222 All service providers, including housing and housing support providers, should have clear operational policies and procedures that reflect the framework set by the SABs in consultation with them. This should include what circumstances would lead to the need to report outside their own chain of line management, including outside their organisation to the local authority. They need to share information with relevant partners such as the local authority even where they are taking action themselves. Providers should be informed of any allegation against them or their staff and treated with courtesy and openness at all times. It is of critical importance that allegations are handled sensitively and in a timely way both to stop any abuse and neglect but also to ensure a fair and transparent process. It is in no-one’s interests to unnecessarily prolong enquiries. However some complex issues may take time to resolve.

Voluntary organisations

14.223 Voluntary organisations need to work with commissioners and the SAB to agree how their role fits alongside the statutory agencies and how they should work together. This will be of particular importance where they are offering information and advice, independent advocacy, and support or counselling services in safeguarding situations. This will include telephone or on-line services. Additionally, many voluntary organisations also provide care and support services, including personal care. All voluntary organisations that work with adults need to have safeguarding procedures and lead officers.

Regulated professionals

14.224 Staff governed by professional regulation (for example, social workers, doctors, allied health professionals and nurses) should understand how their professional standards and requirements underpin their organisational roles to prevent, recognise and respond to abuse and neglect.

Recruitment and training for staff and volunteers

14.225 The SAB should ensure that relevant partners provide training for staff and volunteers on the policy, procedures and professional practices that are in place locally, which reflects their roles and responsibilities in safeguarding adult arrangements. Employers, student bodies and voluntary organisations should also undertake this, recognising their critical role in preventing and detecting abuse. This should include:

• basic mandatory induction training with respect to awareness of spotting signs of abuse and the duty to report
• more detailed awareness training, including training on recognition of abuse and responsibilities with respect to the procedures in their particular agency
• specialist training for those who will be undertaking enquiries, and managers; and, training for elected members and others for example, healthwatch members
• post qualifying or advanced training for those who work with more complex enquiries and responses or who act as their organisation’s expert in a particular field, for example in relation to legal or social work, those who provide medical or nursing advice to the organisation or the Board

14.226 Training should take place at all levels in an organisation and be updated regularly to reflect current best practice. To ensure that practice is consistent – no staff group should be excluded. Training should include issues relating to staff safety within a Health and Safety framework and also include volunteers. In a context of personalisation, boards should seek assurances that directly employed staff (for example, Personal Assistants) have access to training and advice on safeguarding.

14.227 Training is a continuing responsibility and should be provided as a rolling programme. Whilst training may be undertaken on a joint basis and the SAB has an overview of the standards and content, it is the responsibility of each organisation to ensure the effective delivery of safeguarding training to its own staff.

14.228 Regular face-to-face supervision and reflective practice, from skilled managers is essential to support staff, and to enable staff to work confidently and competently with difficult and sensitive situations.

Rigorous recruitment practices relevant to safeguarding

14.229 There are 3 levels of a Disclosure and Barring Service (DBS) check. Each contains different information and the eligibility for each check is set out in law. They are:

Standard check

This allows employers to access the criminal record history of people working, or seeking to work, in certain positions, especially those that involve working with children or adults in specific situations. A standard check discloses details of an individual’s convictions, cautions, reprimands and warnings recorded on police systems and includes both ‘spent’ and ‘unspent’ convictions.

Enhanced check

This discloses the same information provided on a Standard certificate, together with any local police information that the police believe is relevant and ought to be disclosed.

Enhanced with barred list check

This check includes the same level of disclosure as the enhanced check, plus a check of the appropriate barred lists. An individual may only be checked against the children’s and adults’ barred lists if their job falls within the definition of ‘regulated activity’ with children and/or adults under the Safeguarding Vulnerable Groups Act 2006, as amended by the Protection of Freedoms Act 2012. It should be noted that in ‘signing off’ or agreeing a personal budget or personal health budget a local authority may add conditions such as a DBS check as part of its risk assessment of safeguarding in specific cases. The local authority may also require personal budget holders using Direct Payments to specify whom they are employing to the local authority.

14.230 Skills for Care has produced a recruitment and retention toolkit for the adult care and support sector. ‘Finders Keepers’ is designed to help care providers, particularly smaller organisations, to improve the ways they recruit staff and retain them. Internal guidelines for all staff

14.231 Provider agencies should produce for their staff a set of internal guidelines which relate clearly to the multiagency policy and which set out the responsibilities of all staff to operate within it. These should include guidance on:

• identifying adults who are particularly at risk
• recognising risk from different sources and in different situations and recognising abusive or neglectful behaviour from other service users, colleagues, and family members
• routes for making a referral and channels of communication within and beyond the agency
• organisational and individual responsibilities for whistleblowing
• assurances of protection for whistle blowers
• working within best practice as specified in contracts
• working within and co-operating with regulatory mechanisms
• working within agreed operational guidelines to maintain best practice in relation to:
• challenging or distressing behaviour
• personal and intimate care
• control and restraint
• gender identity and sexual orientation
• medication
• handling of people’s money
• risk assessment and management (read risk guidance for people living with dementia)

14.232 Internal guidelines should also explain the rights of staff and how employers will respond where abuse is alleged against them within either a criminal or disciplinary context.

Integration and partnership working

This section includes chapters 15,16, 17 and 18 and has information on:

15. Integration, cooperation and partnerships

This chapter provides guidance on:

• Sections 3, 6, 7, 22, 23, 74 and Schedule 3 of the Care Act 2014
• the Care and Support (Provision of Health Services) Regulations 2014
• the Care and Support (Discharge of Hospital Patients) Regulations 2014

This chapter covers:

• integrating care and support with other local services:

  • strategic planning
  • integrating service provision and combining and aligning processes

• cooperation of partner organisations:

  • general duty to cooperate
  • who must cooperate
  • cooperation within local authorities
  • cooperating in specific cases

• working with the NHS:

  • the boundary between the NHS and care and support
• delayed transfers of care from hospitals
• working with housing authorities and providers
• working with welfare and employment support

15.1 For people to receive high quality health and care and support, local organisations need to work in a more joined-up way, to eliminate the disjointed care that is a source of frustration to people and staff, and which often results in poor care, with a negative impact on health and wellbeing. The vision is for integrated care and support that is person-centred, tailored to the needs and preferences of those needing care and support, carers and families.

15.2 Sections 3, 6 and 7 of the Act require that:

• local authorities must carry out their care and support responsibilities with the aim of promoting greater integration with NHS and other health-related services
• local authorities and their relevant partners must cooperate generally in performing their functions related to care and support; and, supplementary to this,
• in specific individual cases, local authorities and their partners must cooperate in performing their respective functions relating to care and support and carers wherever they can

Integrating care and support with other local services

15.3 Local authorities must carry out their care and support responsibilities with the aim of joining-up the services provided or other actions taken with those provided by the NHS and other health-related services (for example, housing or leisure services). This general requirement applies to all the local authority’s care and support functions for adults with needs for care and support and for carers, including in relation to preventing needs (see chapter 2), providing information and advice (see chapter 3) shaping and facilitating the market of service providers (see chapter 4), safeguarding (see chapter 14), cross-border placements (see chapter 21), and transition to adult care and support (see chapter 16).

15.4 This duty applies where the local authority considers that the integration of services will:

• promote the wellbeing of adults with care and support needs or of carers in its area
• contribute to the prevention or delay of the development of needs of people
• improve the quality of care and support in the local authority’s area, including the outcomes that are achieved for local people

15.5 The local authority is not solely responsible for promoting integration with the NHS, and this responsibility reflects similar duties placed on NHS England and clinical commissioning groups (CCGs) to promote integration with care and support. Under the NHS Act, NHS England must encourage partnership arrangements between CCGs and local authorities where it considers this would ensure the integrated provision of health services and that this would improve the quality of services or reduce inequalities. Similarly, every CCG has a duty to exercise its functions with a view to securing that health services are provided in an integrated way, where this would improve the quality of health and/or reduce inequalities in access or outcomes. The Care Act adds further coherence by placing an equivalent duty on local authorities to integrate care and support provision with health services and health related services, for example housing (see paragraphs 15.7-15.8 below about the integration of health and health related services).

15.6 There are a number of ways in which local authorities can fulfil this duty at the strategic level; at the level of individual service; and in combining and aligning processes. Some examples are discussed below.

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Case study: Promoting the integration of housing, health and social care across Leicestershire

District Councils in Leicestershire have taken a strategic approach to working with county wide providers on priority issues, including housing, health and wellbeing. A District Chief Executive leads across the 7 District Councils working with a network of senior managers in each individual council. This has built the influence and credibility of District Councils with health and social care leaders who now have an increasing understanding of the vital role housing and housing based services play in the delivery of better outcomes for vulnerable people. The Housing Offer to Health in Leicestershire is built into the County`s Better Care Fund priorities and work is underway across health, social care and housing in the following key areas:

Housing’s Hospital to Home discharge pathway: looking to place housing options expertise within the day-day discharge assessment and planning work of both acute and mental health providers so that the planning and decisions around an individual’s hospital discharge includes early consideration, and actioning of appropriate and supportive housing options. * establishing an integrated service to provide practical support to people in their own homes across all tenures so that aids, equipment, adaptations, handy person services and energy efficiency interventions are available and delivered quickly. Through this we hope to reduce the time taken to provide practical help to individual people with care and support needs, reduce process costs for services paid for through the public purse and support vulnerable people to access the low level practical support that helps them remain independently at home.

Establishing a locality based approach to prevention and housing based support which includes Local Area Co-ordination, Timebanking and delivery of low level support services to vulnerable older people through a mixture of community volunteers and multi-skilled workers.

The district councils are therefore promoting wellbeing in the area of suitability of accommodation at population level, providing a basis for promoting individual wellbeing via transfers of care and universal preventative services.

Strategic planning

Integration with health and health-related services

15.7 A local authority must promote integration between care and support provision, health and health related services, with the aim of joining up services. To ensure greater integration of services, a local authority should consider the different mechanisms through which it can promote integration, for example;

a) Planning

Using adult care and support and public health data to understand the profile of the population and the needs of that population. For example, using information from the local Joint Strategic Needs Assessments to consider the wider need of that population in relation to housing (see chapter 2 for further guidance in relation to prevention). The needs of older and vulnerable residents should be reflected within local authorities’ development plans with reference to local requirements for inclusive mainstream housing and specialist accommodation and/or housing services. As part of this, local authorities can share population level data with partners to enable greater integration.

b) Commissioning

Building on joint strategic needs assessments, joint commissioning can ensure better outcomes for populations in an area. A local authority may wish to have housing represented at the Health and Wellbeing Board/Clinical Commissioning Groups (CCGs) making a visible and effective link between preventative spend (including housing related) and preventing acute/crisis interventions. Ways to achieve this include jointly-commissioned advice services covering healthcare and housing, and services like housing-related support that can provide a range of preventative interventions alongside care.

c) Assessment and information and advice

This may include integrating an assessment with information and advice about housing options on where to live, and adaptations to the home, care and related finance to help develop a care plan (if necessary), and understand housing choices reflecting the person’s strengths and capabilities to help achieve their desired outcomes. There may be occasions where non-social care professional (for example, a housing staff) knows the person best, and with their agreement may be able to contribute to the assessment process or provide information. As part of care and support planning (se chapter 10) a local area could introduce a single care plan for an individual spanning health, care and housing that is owned and directed by that person.

d) Delivery or provision of care and support

That is integrated with an assessment of the home, including general upkeep or scope for aids and adaptations, community equipment of other modifications could reduce the risk to health, help maintain independence or support reablement or recovery. For example, some specialist housing associations and home improvement agencies may offer a support service which could form part of a jointly agreed support plan. A housing assessment should form part of any assessment process, in terms of suitability, access, safety, repair, heating and lighting (for example, efficiency).

Joint strategic needs assessment

15.8 Local authorities and clinical commissioning groups already have an equal and joint duty to prepare Joint Strategic Needs Assessments (JSNAs) and Joint Health and Wellbeing Strategies (JHWS) through health and wellbeing boards. JSNAs are local assessments of current and future health and care needs that could be met by the local authority, CCGs or the NHS Commissioning Board, or other partners. JHWSs are shared strategies for meeting those needs, which set out the actions that each partner will take individually and collectively.

15.9 Joint Strategic Needs Assessments and Joint Health and Wellbeing Strategies are therefore key means by which local authorities work with CCGs to identify and plan to meet the care and support needs of the local population, including carers. JHWSs can help health and care and support services to be joined up with each other and with health-related services. Local Authorities and CCGs can include in their JHWSs a statement of how arrangements for the provision of health, social care and health-related services might be better integrated.

15.10 Under the Act, local authorities must exercise its care and support functions with a view to ensuring integration with health and health-related services if doing so would achieve any or all of the objectives set in paragraph 15.4 above (promoting wellbeing; preventing or delaying needs; improving the quality of care). The JHWSs should also set the local context and frame the discussion with partners on how different organisations can work together to align and integrate services. However, local authorities should bear in mind that carrying out the JSNA and JWHS on their own will not be sufficient to fulfil the requirement to promote integration; it will be the agreed actions which follow the strategies and plans that will have the greatest impact on integration and on the experience and outcomes of people.

Integrating service provision and combining and aligning processes

15.11 There are many ways in which local authorities can integrate care and support provision with that of health and related provision locally. Different areas are likely to find success in different models. Whilst some areas may pursue for integrated organisational structures, or shared funding arrangements, others may join up teams of frontline professionals to promote multi-disciplinary working. There is no required format or mechanism for integrating provision, and local authorities should consider and develop their strategy jointly with partners.

15.12 At the strategic level, there are many examples of how local authorities can integrate services including:

The use of ‘pooled budgets’

Which bring together funding from different organisations to invest jointly in delivering agreed, shared outcomes. For example, the Better Care Fund, which provides local authorities and CCGs with a shared fund to invest in agreed local priorities which support health and care and support, will be a key opportunity to promote integration in provision to ensure access to, and availability of, a range of preventative care and support services in the community.

The development of joint commissioning arrangements

To achieve health and wellbeing outcomes across traditional service boundaries of housing, health, care and support.

Integrated management or provision of services.

This could, for example, include jointly funding home adaptations to ensure people with changing care needs are able to maximize their independence and live well at home for longer.

15.13 In terms of working practices to encourage greater integration at an individual level, this could include recruiting and training individual care coordinators who are responsible for planning how to meet an adult’s needs through a number of service providers. Another example could be in relation to working with people who are being discharged from hospital, where staff from more than one body may be involved with providing or arranging care and support to allow the person to return home and live independently. As with other examples of integration, this would not necessarily require structural integration – for example, organisations merging – but a seamless service, from the point of view of the person, could be delivered by staff working together more effectively, for example, integrating an assessment with information and advice about housing options, or co-locating housing support workers in health and care settings like GPs surgeries or hospitals. (see paragraphs 15.54-15.75 on housing and integration).

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Case study: Promoting the integration and social care with regards to carers support in Torbay and Southern Devon Health and Care NHS Trust

Torbay, a ‘Care Trust’ or organisation responsible for health and social takes a ‘whole system’ approach to the identification and support of carers. They worked with clinicians in primary care and the acute trust to develop an evidence base to show the positive impact early support and access to services has on carers’ health and wellbeing. This led to recognition that carer support is the joint responsibility of primary and acute health services and social care as well as an understanding that carers can be a ‘reluctant audience’ and may not identify themselves until in crisis.

Torbay has used joint CQUINs (commissioning for quality and innovation payments) to drive change. They developed a model founded on having Carers Support Workers at key points in the carer’s journey in all GP practices, in the Acute Hospital Discharge team and in specialist community teams such as Mental Health and Substance Misuse. These workers provide easy access to support, advice to other practitioners, and signpost carers through the system. They also target key staff groups for development; for example the 2013/14 focus has been on training and encouraging district and community nurses to identify and signpost carers to support. This has significantly increased referrals as well as raised awareness.

A pathway exercise was undertaken with staff and carers to map the carer’s journey through the whole system and the points at which engagement did, or could, happen. This has led to changes such as Carer Contact Cards, which includes key information on where carers can get support, in all discharge folders and a new Carers Policy for Torbay Hospital.

Providing simple, easy to access services for all carers such as Signpost’s information service, a Torbay carers’ register and carer education programmes, that are not subject to eligibility criteria and has brought carers into support much earlier therefore reducing crises.

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15.14 Local authorities, together with their partners, should consider combining or aligning key processes in the care and support journey, where there may be benefit to the individual concerned from linking more effectively. Combined assessments should only take place in suitable circumstances and where assessors are trained to do so. For example, combining assessments may allow for a clearer picture of the person’s needs holistically, and for a single point of contact with the person to promote consistency of experience, so that provision of different types of support can be aligned. A number of assessments could be carried out on the same person, for example a care and support needs assessment, health assessment and continuing healthcare assessments. Where it is not practicable for assessments to be conducted by the same professional, it may nonetheless be possible to align processes to support a better experience, for example, the second or third assessor could be obliged to read the first assessment (provided there is a lawful basis for sharing the information) and not ask any information that has already been collected, or the different bodies could work together to develop a single, compatible assessment tool. Local authorities have powers to carry out assessments jointly with other parties, or to de-delegate the function in its entirety.

Co-operation of partner organisations

15.15 All public organisations should work together and co-operate where needed, in order to ensure a focus on the care and support (including carers’ support) and health and health-related needs of their local population. Whilst there are some local services where the local authority must actively promote integration, in other cases it must nonetheless co-operate with relevant local and national partners.

15.16 Co-operation between partners should be a general principle for all those concerned, and all should understand the reasons why co-operation is important for those people involved. The Act sets out 5 aims of co-operation between partners which are relevant to care and support, although it should be noted that the purposes of co-operation are not limited to these matters:

• promoting the wellbeing of adults needing care and support and of carers
• improving the quality of care and support for adults and support for carers (including the outcomes from such provision)
• smoothing the transition from children’s to adults’ services
• protecting adults with care and support needs who are currently experiencing or at risk of abuse or neglect
• identifying lessons to be learned from cases where adults with needs for care and support have experienced serious abuse or neglect

15.17 The processes and systems behind the areas noted above, as well as how working with partners is integral to achieving the best outcomes, are set out in more detail in other chapters of this guidance.

15.18 Local authorities and relevant partners must co-operate when exercising any respective functions which are relevant to care and support. This requirement relates to organisations existing functions only, and the Act does not confer new functions.

15.19 ‘Co-operation’, like integration, can be achieved through a number of means, and is intended to require the adoption of a common principle, rather than to prescribe any specific tasks. There are a number of powers which local authorities may use to promote joint working. For example, local authorities may share information with other partners, or provide staff, services or other resources to partners to improve co-operation. Some of the actions may be the same as those undertaken to promote integration, for example under section 75 of the NHS Act 2006, a local authority may contribute to a ‘pooled budget’ with an NHS body - a shared fund out of which payments can be made to meet agreed priorities.

15.20 Other actions may be specific to particular circumstances or the needs of a specific group, for example the local authority co-operating with prisons in its area to develop a joint strategy for meeting the care and support needs of prisoners.

Who must co-operate?

15.21 The local authority must co-operate with each of its relevant partners, and the partners must also co-operate with the local authority, in relation to relevant functions. The Act specifies the ‘relevant partners’ who have a reciprocal responsibility to co-operate. These are:

• other local authorities within the area (for example, in multi-tier authority areas, this will be a district council)
• any other local authority which would be appropriate to co-operate with in a particular set of circumstances (for example, another authority which is arranging care for a person in the home area)
• NHS bodies in the authority’s area (including the primary care, CCGs, any hospital trusts and NHS England, where it commissions health care locally) [see paragraphs 15.29-15.53 about care and support and the NHS]
• local offices of the Department for Work and Pensions, such as Job Centre Plus (see para. 15.73 about care and support, welfare and employment)
• police services in the local authority areas and prisons and probation services in the local area [see chapter 17 on care and support in Prisons]

15.22 In addition, there may be other persons or bodies with whom a local authority should co-operate if it considers this appropriate when exercising care and support functions, in particular independent or private sector organisations. Examples include, but are not limited to, care and support providers, NHS primary health providers, independent hospitals and private registered providers of social housing, the Care Quality Commission and regulators of health and social care professionals. In these cases, the local authority should consider what degree of co-operation is required, and what mechanisms it may have in place to ensure mutual co-operation (for example, via contractual means).

Ensuring co-operation within local authorities

15.23 Local authorities fulfil a range of different functions that have an impact on the health and wellbeing of individuals, in addition to their care and support responsibilities (for example, children’s services, housing, public health). It is therefore important that, in addition to ensuring co-operation between the local authority and its external partners, there is internal co-operation between the different local authority officers and professionals who provide these services. Local authorities must make arrangements to ensure co-operation between its officers responsible for adult care and support, housing, public health and children’s services, and should also consider how such arrangements may also be applied to other relevant local authority responsibilities, such as education, planning and transport. Arrangements that local authorities could make to ensure co-operation between officers include offering training and establishing systems for information sharing or multi-disciplinary teams.

15.24 For example, it is important that local authority officers responsible for housing work in co-operation with adult care and support, given that housing and suitability of living accommodation play a significant role in supporting a person to meet their needs and can help to delay that person’s deterioration. Similarly, the transition from children’s social care to adult care and support will require local authority officers in the respective departments to co-operate to share information, prepare for transition, and ensure the young person’s needs are met on reaching the age of 18. Co-operation is also needed where there are children at risk of taking on inappropriate caring roles. In these cases local authorities should be referring children for a young carer’s assessment under the Children Act and under the Care Act where the conditions in section 63 apply. Joint working with the Director of Public Health will be important when, for example, developing joint health and wellbeing strategies, and designing and commissioning preventative services.

Co-operating with partners in specific cases

15.25 Co-operation in relation to care and support functions should form part of a local authority and partners’ general strategic thinking, which should, in turn, inform how they exercise these functions day-to-day. However, there will be individual cases where more specific co-operation will be required, and a local authority or partner will need to explicitly ask one another for co-operation, for example, by requesting specific action in an individual case. The Care Act provides an express duty for the local authority and partner to ask each other for co-operation in individual cases.

15.26 Where a local authority or partner requests co-operation from each other in relation to a particular individual case, the local authority or relevant partner must co-operate as requested, unless doing so would be incompatible with their own duties or have an adverse effect on the exercise of their functions.

15.27 This mechanism is intended to support partners with a means of identifying specific cases in which more targeted co-operation is required. In practice, it may be the case that general working protocols and relationships between organisations mean that this further process is not required. However, there will be situations that arise which that necessitate a more tailored response to fit around the person concerned. This might include, for example:

• when a person is planning to move from one area to another, and the authorities involved require co-operation to support that move
• when an assessment of care and support needs identified other needs that should be assessed (for instance, health needs that may indicate eligibility for NHS Continuing Healthcare)
• when a local authority is carrying out a safeguarding enquiry or review, and requires the support of another organisation

15.28 Where the local authority or relevant partner decide to use this mechanism, they should notify the other in writing, making clear the relevant Care Act provisions. If the local authority or the relevant partner decide not to co-operate with a request, then they must write to the other, setting out reasons for not doing so. Local authorities and their relevant partners must respond to requests to cooperate under their general public law duties to act reasonably, and failure to respond within a reasonable time frame could be subject to judicial review.

Working with the NHS

The boundary between care and support and the NHS

15.29 Local authorities must carry out an assessment where someone appears to have needs for care and support. It has a duty to meet those needs for care and support that meet the eligibility criteria. Similarly, in the case of carers, the local authority must carry out an assessment if a carer appears to have, or is likely to have, needs for support and it has a duty to meet those needs for support that meet the eligibility criteria. However, local authorities cannot lawfully meet needs in either case by providing or arranging services that are legally the responsibility of the NHS.

15.30 In order to support joint working, it is important that all partners involved are clear about their own responsibilities, and how they fit together. Section 22 of the Care Act sets out the limits on what a local authority may provide by way of healthcare and so, in effect, sets the boundary between the responsibilities of local authorities for the provision of care and support, and those of the NHS for the provision of health care.

15.31 Where the NHS has a clear legal responsibility to provide a particular service, then the local authority may not do so. This general rule is intended to provide clarity and avoid overlaps, and to maintain the existing legal boundary. However, there is an exception to this general rule, in that the local authority may provide some limited healthcare services as part of a package of care and support, but only where the services provided are ‘incidental or ancillary’ (that is, relatively minor, and part of a broader package), and where the services are the type of support that an authority whose primary responsibility if to provide social services could be expected to provide.

15.32 The 2 most obvious relevant examples of healthcare that are clearly the responsibility of the NHS (and thus not something a local authority may provide) are nursing care provided by registered nurses, and services that the NHS has to provide because the individual is eligible for NHS Continuing Healthcare.

15.33 NHS Continuing Healthcare is a package of ongoing care that is arranged and funded solely by the health service for individuals outside a hospital setting who have complex ongoing healthcare needs, of a type or quantity such that they are found to have a ‘primary health need’. Such care is provided to people aged 18 or over, to meet needs that have arisen as a result of disability, accident or illness. NHS Continuing Healthcare is not dependent on a person’s condition or diagnosis, but is based on their specific physical or mental health needs.

15.34 Where the person has a ‘primary health need’ as set out in regulations and as determined following an assessment of need under national guidance in the national framework for NHS Continuing Healthcare and NHS-funded nursing care (‘the national framework’), it is the responsibility of the health service to meet all assessed health and associated care and support needs, including suitable accommodation, if that is part of the overall need.

15.35 The national framework sets out a process for the NHS, working together with its local authority partners wherever practicable, to assess health needs, decide on eligibility for NHS Continuing Healthcare, and provide that assessed care. ‘NHS-funded Nursing Care’, is the funding provided by the NHS to care homes providing nursing, to support the provision of nursing care by a registered nurse. If an individual does not qualify for NHS Continuing Healthcare, the need for care from a registered nurse must be determined. If the person has such a need and it is determined that their overall needs would be most appropriately met in a care home providing nursing care, then this would lead to eligibility for NHS-funded Nursing Care. Once the need for such care is agreed, a CCG (or in some cases NHS England) must pay a flat-rate contribution to the care home towards registered nursing care costs.

15.36 The regulations and guidance referred to above, set out how the ‘primary health need’ test takes account of the limits of local authority responsibility. Although the regulations and guidance pre-date the coming into force of the Care Act 2014, the limits of local authority responsibility have not been changed by the Care Act 2014.

Supporting discharge of hospital patients with care and support

15.37 The provisions on the discharge of hospital patients with care and support needs are contained in Schedule 3 to the Care Act 2014 and the Care and Support (Discharge of Hospital Patients) Regulations 2014 (‘the Regulations’). These provisions enable the NHS to seek reimbursement from local authorities where they consider it necessary in order to assist the NHS and local authorities in working together effectively and efficiently to plan the safe and timely discharge of NHS hospital patients from NHS acute medical care facilities to local authority care and support. The purpose of these provisions is to maintain the existing scope of the reimbursement regime but to update existing provisions to reflect the current NHS and care and support landscape. Also, in light of the drive to improve integration between health and social care provision the recovery of any reimbursement has now been placed on a discretionary rather than mandatory footing.

15.38 Schedule 3 to the Care Act covers:

• the scope of the hospital discharge regime and the definition of the patients to whom it applies
• the notifications which an NHS body must give a local authority where the NHS considers that it is not likely to be safe to discharge the patient unless arrangements for meeting the patient’s needs for care and support are put in place
• the period for which an NHS body can consider seeking reimbursement from a local authority, where that local authority has not fulfilled its requirements to assess or put in place care and support to meet needs, or (where applicable) to meet carers’ needs for support, within the time periods set such that the patient’s discharge from hospital is delayed

15.39 The Regulations and this guidance both set out further details of the form and content of what the various types of NHS notification notices must and should contain to ensure the local authority has relevant information to comply with its requirements to undertake assessments, and to put in place any arrangements necessary for meeting any of the patient’s care and support needs, or where applicable, the carer’s needs for support. They set out the circumstances when assessment notices and discharge notices must be withdrawn, and determine the period and amount of any reimbursement liability which a local authority may be required to pay the NHS for any delay in the transfer of care.

15.40 This guidance seeks to support the effective implementation of the requirements of these regulations. However, it does not address the wider practice issues associated with planning safe and effective discharge which apply to all cases of hospital discharge regardless of they whether they fall within the scope of these provisions or not. In relation to all cases, both NHS and local authorities should, using the best evidence available, develop and apply local protocols that ensure that all patients receive appropriate and safe discharge procedures.

Reimbursement as part of the wider duties to co-operate and promote integration

15.41 The NHS may seek reimbursement from local authorities for a delayed transfer of care in the circumstances set out in Schedule 3 to the Care Act and its Regulations. The potential for reimbursement liability is intended to act as an incentive to improve joint working between the NHS and local government, but should not be seen in isolation. It is a part of a wider picture in which joint and integrated working is embedded in the Act. The opportunity to seek collaborative solutions to address barriers locally in the first instance is reflected in the use of these reimbursements being made discretionary: see paragraphs 4(1) and (2) of Schedule 3 to the Act.

15.42 NHS and local authorities should develop and adopt collaborative approaches to working together in order to reduce the number of delayed days where a patient is ready to be transferred from NHS acute medical care to other settings regardless of whether the patient falls within the scope of the reimbursement regime. Both the NHS and local authorities owe a common law duty of care to the people within their care. The duties to cooperate in the Care Act 2014 also apply to all transfers of care.

15.43 The majority of delayed discharge days are attributable to the NHS and because the issues behind them are within their gift to address, it is important that NHS organisations consider what actions they need to take to support reductions in delayed discharges for which the cause is wholly within the health sector. NHS organisations should report the days for as long as the delay occurs. This reporting is required irrespective of whether the patient concerned has potential social care needs and whether the patient comes within the scope of the potential reimbursement arrangements or not.

To whom do the discharge of hospital patients provisions apply?

15.44 The discharge of hospital patients provisions only apply to NHS hospital patients in England who are receiving acute care, and who the NHS considers are likely to have care and support needs after discharge from hospital and who have not otherwise been expressly excluded. However, even where a patient falls outside the scope of these provisions, this does not means that the NHS and local authorities should not be working together to deliver the safe and timely discharge of all hospital patients with care and support needs.) More detail on the key criteria is set out below:

NHS Hospital Patient in England

A hospital patient is a person who is ordinarily resident in England who is accommodated in an NHS hospital in England, or in an independent hospital in the United Kingdom under arrangements made by an English NHS body.

Adult Care and Support Needs

In terms of age, the discharge of hospital patient provisions do not apply in respect of patients who will be under the age of 18 at the proposed date of discharge, as they will have their relevant care and support needs met by children’s social services provided under other provisions (for example, the Children Act 1989).

Acute Care

The provisions only apply to patients who are receiving, have received or can reasonably be expected to receive, acute care. Acute care means intensive medical treatment provided by or under the supervision of a consultant that lasts for a limited period after which the person receiving the treatment no longer benefits from it.

NHS hospital patients to whom the provisions do not apply

15.45 The following cases are excluded from the reimbursement regime under the Care Act:

Mental health care

Mental health care means psychiatric services, or other services provided for the purpose of preventing, diagnosing or treating illness, the arrangements for which are the primary responsibility of a consultant psychiatrist. However, if the patient is receiving treatment in an acute setting for a physical condition and is under the care of an acute medical consultant but has post-care needs that relate, for example, to their dementia, the case could fall within the scope of the discharge of hospital patient provisions. If a person is admitted with a physical condition but during their stay is subsequently transferred to the care of a consultant psychiatrist, then delays to that person’s discharge would not count towards any potential reimbursement.

Private patients

As the regime only applies to NHS patients, the Discharge of Hospital provisions do not apply to patients who have given an undertaking to pay for their care in an NHS hospital or who are accommodated at an independent hospital under private arrangements. However, patients who are admitted to NHS hospitals as private patients but who subsequently elect to change their status and become NHS patients while still receiving acute medical treatment fall within the scope of the Act from the point at which they start to be treated as NHS patients.

Other

In addition, palliative care, maternity care, intermediate care and care provided for recuperation or rehabilitation are excluded from the definition of acute care.

Patients in independent hospitals receiving NHS-commissioned acute care

15.46 NHS patients can receive acute treatment which is arranged and funded by an NHS body, but which takes place in an independent sector hospital. As such they are NHS patients, and can fall within the Discharge of Hospital Patient provisions if they also satisfy the criteria set out above.

15.47 The duty to issue notices will apply in respect of these cases, as may the potential for the NHS to seek reimbursement from the local authority for any delayed transfers of care. The Act allows an NHS body which has commissioned acute treatment at an independent hospital within the UK to make arrangements for the independent provider to issue assessment or discharge notifications on its behalf. This means that independent providers can take decisions such as whether the patient is likely to need care and support services, when the patient is to be discharged, what follow-up health needs they may have. However, the NHS body will retain ultimate responsibility for the functions, including any claim for reimbursement that might be appropriate. Working with housing authorities and providers

15.48 Housing or suitable living accommodation is a place which is safe, healthy and suitable for the needs of a person, so as to contribute to promoting physical and emotional health and wellbeing and social connections. For example, a healthy home would be dry, warm and insulated and a safe home would meet particular needs (for example, of an older person). Housing refers to the home and the neighbourhood where people live, and to the wider housing sector including staff and services around these homes.

15.49 Suitable living accommodation includes all places where people live; for example a house, flat, other general dwelling or an adult placement or other specialist housing.

15.50 Housing and the provision of suitable accommodation should be considered when considering the provision of care and support and carers’ support. The setting in which a person lives, and its suitability to their specific needs can have a major impact on the extent and means to which their care and support needs can be met, or prevented, over time. Housing is therefore a crucial health-related service which is to be integrated with care and support and health services to promote the wellbeing of adults and carers and improve the quality of services offered.

15.51 Local authorities have broad powers to provide different types of accommodation in order to meet people’s needs for care and support. The Care Act is clear that suitable accommodation can be one way of meeting care and supports needs. However, the Act is also clear on the limits of responsibilities and relationship between care and support and housing legislation, to ensure that there is no overlap or confusion. Section 23 of the Care Act clarifies the existing boundary in law between care and support relevant housing legislation, such as the Housing Act 1996. Where a local authority is required to meet accommodation related needs under housing legislation as set out in the Housing Act 1996 or under any other legislation specified in regulations (and in the case of 2 tier authorities it would include ‘another local authority’) then the local authority must meet those needs under that housing legislation. Where housing forms part of the solution to meeting a person’s needs for care and support, or preventing needs for care and support, then a local authority may include this in the care or support plan even though the housing element itself is provided under housing legislation. Any care or support needed to supplement housing is covered by this Act.

15.52 The purpose of this is to clarify the boundary in law between a local authority’s care and support function and its housing function. It does not prevent joint working, and it does not prevent local authorities in the care and support role from providing more specific services such as housing adaptations, or from working jointly with housing authorities.

15.53 Housing plays a critical role in enabling people to live independently and in helping carers to support others more effectively. Poor or inappropriate housing can put the health and wellbeing of people at risk, where as a suitable home can reduce the needs for care and support and contribute to preventing or delaying the development of such needs. Housing services should be used to help promote an individual’s wellbeing, in which people in need of care and support and carers can build a full and active life. Suitability of living accommodation is one of the matters local authorities must take into account as part of their duty to promote an individual’s wellbeing.

15.54 Consideration of housing issues in relation to a local authority’s reasonability is an integral part of the health and care system and a local authority’s responsibility for care and support. This could be in relation to a local authority’s duty on prevention (see chapter 2) or through the duty to assess an adult or carer’s needs for care and support (see chapter 6), or in providing advice and information (see chapter 3).

15.55 Enabling individuals to recognise their own skills, ambitions and priorities and developing personal and community connections in relation to housing needs can help promote an individual’s wellbeing. Supporting people through the provision of good quality information and advice can help people make early choices about their housing options and related services in advance of a potential crisis. This avoids making such decisions when a person is in crisis or when such decisions have to be taken by relatives or carers. People can be helped to stay independent longer through adaptations and modifications to their homes or extra care or support being offered in their home.

15.56 Health, care and support and housing services should centre on the individual and family, by helping them to articulate the outcomes they want to achieve a local authority can consider what support it can provide in or through the home.

Considering accommodation within the wellbeing principle

15.57 Local authorities have a general duty to promote an individual’s wellbeing when carrying out their care and support functions. The Act is clear that one specific component of wellbeing is the suitability of living accommodation. A local authority should consider suitable living accommodation in looking at a person’s needs and desired outcomes.

15.58 Housing has a vital role to play in other areas relating to a person’s wellbeing. For example access to a safe settled home underpins personal dignity. A safe suitable home can contribute to physical and mental wellbeing and can provide control over day to day life and protection from abuse and neglect. A home or suitable living accommodation can enable participation in work or education, social interactions and family relationships.

15.59 In relation to housing, a local authority can make an important contribution to an individual’s wellbeing, for example by providing and signposting information that allows people to address care and support needs through specific housing related support services, or through joint planning and commissioning that enables local authorities to provide (or arrange for the provision of) housing and care services or housing adaptations to meet the needs of the local population.

Housing to support prevention of needs

15.60 In many cases, the best way to promote someone’s wellbeing will be through preventative measures that allow people to live as independently as possible for as long as possible.

15.61 A local authority must provide or arrange for the provision of services that contribute towards preventing, reducing or delaying the needs for care and support (see chapter 2). Housing and housing related support can be a way to prevent needs for care and support, or to delay deterioration over time. Getting housing right and helping people to choose the right housing options for them can help to prevent falls, prevent hospital admissions and readmissions, reduce the need for care and support, improve wellbeing, and help maintain independence at home.

15.62 Housing and housing services can play a significant part in prevention, for example, from a design/physical perspective, accessibility, having adequate heating and lighting, identifying and removing hazards or by identifying a person who needs to be on the housing register. In addition, housing related support, for example, services that help people develop their capacity to live in the community, live independently in accommodation, or sustain their capacity to do so, such as help with welfare benefits, developing budgeting skills, help with developing social networks or taking up education, training and employment opportunities can prevent, reduce or delay the needs for care and support. Community equipment, along with telecare, aids and adaptations can support reablement, promote independence contributing to preventing the needs for care and support.

15.63 A local authority may wish to draw on the assistance of the housing authority and local housing services. Housing-related support staff and scheme managers can contribute to prevention, for example by being alert to early signs of ill health, for example, dementia, and signposting or supporting individuals to access community resources which may prevent, reduce or delay the need for care and support or a move into residential care.

15.64 The links between living in cold and damp homes and poor health and wellbeing are well-evidenced. Local authorities may wish to consider the opportunities to prevent the escalation of health and care and support needs through the delivery or facilitation of affordable warmth measures to help achieve health and wellbeing outcomes.

Integrating information and advice on housing

15.65 A local authority must establish and maintain a service for providing information and advice relating to care and support, and this must include advice on relevant housing and housing services which meet care and support needs. The authority is not required to provide all elements of this service, rather, they are expected under this duty to understand, co-ordinate and make effective use of other statutory, voluntary and or private sector information and advice resources within their area in order to deliver more integrated information and advice.

15.66 A person-centred approach to information and advice will consider the person’s strengths and capabilities and the information or advice that will help them to achieve their ambitions. Information and advice should include services in the home that bring health, care and housing services together. This means that information and advice on housing, on adaptations to the current home, or alternative housing options or housing related services should be included. This will enable a person to choose how best they can meet or prevent their needs for care and support. (See chapter 3 on information and advice).

15.67 A person using care and support or carer should be supported to make fully informed decisions about how to prevent or meet their needs for care and support. A local authority should make use of information and advice that is already available at local and national levels. Examples of some national resources are:

• FirstStop Advice
• The Money Advice Service
• NHS Choices: Your guide to care and support
• Foundations

15.68 People’s care and support needs, their housing circumstances and financial resources are closely interconnected. It is only with full knowledge of the care and support options open to them, including possible housing options and the related financial implications that people will be able to exercise informed choice. For example, some people with their families have made early decisions about moving into residential care possibly sooner than is necessary. Information and advice about the full range of accommodation/housing options and how these might be funded can contribute to more informed decision making for individuals and can extend independent living.

Case study: Putting health back into housing

The Gloucestershire Affordable Housing Landlords’ Forum (GAHLF), comprising of the 7 leading local housing providers in the county, have set out an ‘offer’ to the Health and Wellbeing Board that demonstrates how each is working to improve the quality of life of their residents, the neighbourhoods and wider communities, by investing in new homes, supporting independent living, developing the community and supporting older and vulnerable people.

£12 million is being invested, by Stroud District Council, over 5 years, to improve the quality of housing stock and reduce fuel poverty for tenants. Stroud has been upgrading the heating supply in properties not currently served by mains gas. Many properties have electric storage heating which does not give the same level of control and is more expensive than gas or renewable energy. Dryleaze Court is a Supported Housing unit where 5 properties have had mains gas installed this year. At the same time, the team has also installed uPVC privacy panels, replaced porches with insulated cavity brick walls and fitted new double-glazed windows. The works have improved tenants’ quality of life, helping them to live more comfortably and reduce their fuel bills. All in all, over the 3 years ending March 2013, GAHLF has improved over 14,900 homes, with an estimated savings to the NHS of around £1.4 million per annum.

• Putting Health Back into Housing (PDF, 11.7MB)
• Case Study – Commissioning Advice Services in Portsmouth

Working with employment and welfare services

15.69 The Disability and Health Employment Strategy identified that many disabled people and people with health conditions, particularly those with more complex needs, receive a range of different services at local level, for example, care and support, primary and secondary health services, as well as support offered by Jobcentre Plus and contracted providers. It highlighted feedback from stakeholders that the support on offer at a local level to disabled people and people with health conditions can be confusing and inconsistent and often results in them having to give the same information to different services.

15.70 Local authorities must establish and maintain an information and advice service, but they are not required to provide all elements of this service. Rather, local authorities are expected to understand, co-ordinate and make effective use of other statutory, voluntary and/or private sector information and advice resources available to people within their areas. The information and advice available to the local population should include information and advice on eligibility and applying for disability benefits and other types of benefits and, on the availability of employment support for disabled adults.

15.71 Different people will need different levels of support from the local authority and other providers of financial information and advice depending on their capability, their care needs and their financial circumstances. People may just need some basic information and support to help them rebalance their finances in light of their changing circumstances. Topics may include welfare benefits, advice on good money management, help with basic budgeting and possibly on debt management. The local authority may be able to provide some of this information itself, for example of welfare benefits, but where it cannot, it should work with partner organisations to help people access it.

15.72 Local authorities, working with their partners, must also use the wider opportunities to provide targeted information and advice at key points in people’s contact with the care and support, health and other local services. This should include application for disability benefits such as Attendance Allowance and Personal Independence Payments, and for Carers Allowance and access to work interviews. Considering individual employment, training and education needs

15.73 In addition to considering how to join up care and support at a local level, local authorities must consider education, training and employment when working with individuals. In particular:

• local authorities must promote wellbeing when carrying out care and support functions, or making a decision in relation to a person. This applies equally to people with care and support needs and their carers. In some specific circumstances, it also applies to children, their carers and to young carers (when they are subject to the transition assessments discussed in chapter 16). The definition of wellbeing includes participation in work education and training. As such local authorities must consider whether participation in work, education or training is a relevant consideration when they are promoting wellbeing.
• local authorities, when carrying out a needs assessment, carer’s assessment or child’s carer’s assessment must have regard to whether the carer works or wishes to do so, and whether the carer is participating in or wishes to participate in education, training or recreation and this should be reflected, as appropriate in the way their needs are met. Local authorities and the Department for Work and Pensions should cooperate to ensure people are given appropriate employment support and opportunities – in particular where this is a person’s preferred outcome. This should include consideration of how direct payments may be used for employment support.
• sections 37 and 38 of the Act support people to move, including to pursue employment opportunities or move closer to family members. Local authorities must ensure continuity of care and support when people move between areas so that they can move without the fear that they will be left without the care and support they need (see chapter 20).

Sources of information

15.74 The integration clauses mirrors similar duties placed on Clinical Commissioning Groups and NHS England. There are a number of relevant documents that local authorities may find of interest:

• the Functions of Clinical Commissioning Groups
• Statutory Guidance on Joint Strategic Needs Assessments and Joint Health and Wellbeing Strategies See part 4: Promoting integration between services
• National Voices, a national coalition of health and social care charities, have produced a narrative for person-centred co-ordinated care and support, showing what this would look like from the perspective of people with care and support needs (PDF, 149KB)

15.75 The following links provide further sources of information in relation to housing service and practical examples which support integration with care and support on a local level:

• Getting to grips with integration: making housing count
• Developing your local housing offer for health and care
• Housing health and safety rating system (HHSRS) guidance
• Hospital to Home: Resource Pack

16. Transition to adult care and support

This chapter provides guidance on:

• Sections 58 to 66 of the Care Act
• The Care and Support (Children’s Carers) Regulations 2014.

This chapter covers:

• when a transition assessment must be carried out
• identifying young people who are not already receiving children’s services
• adult carers and young carers
• features of a transition assessment
• cooperation between professionals and organisation
• providing information and advice once a transition assessment is completed
• provision of age appropriate local services and resources
• after the young person in question turns 18
• combining EHC plans with care and support plans after the age of 18
• continuity of care after the age of 18
• safeguarding after the age of 18
• ordinary residence and transition to higher education
• transition from children’s to adult NHS Continuing Healthcare

16.1 Effective person-centred transition planning is essential to help young people and their families prepare for adulthood. Transition to adult care and support comes at a time when a lot of change can take place in a young person’s life. It can also mean changes to the care and support they receive from education, health and care services, or involvement with new agencies such as those who provide support for housing, employment or further education and training.

16.2 The years in which a young person is approaching adulthood should be full of opportunity. Some of the life outcomes that matter for young people approaching adulthood and their families, may include (but are not limited to):

• paid employment
• good health
• completing exams or moving to further education
• independent living (choice and control over one’s life and good housing options)
• social inclusion (friends, relationships and community)

16.3 The wellbeing of each young person or carer must be taken into account so that assessment and planning is based around the individual needs, wishes, and outcomes which matter to that person (see chapter 1 on the wellbeing principle). Historically, there has sometimes been a lack of effective planning for people using children’s services who are approaching adulthood. Looked-after children, young people with disabilities, and carers are often among the groups of people with the lowest life chances. Early conversations provide an opportunity for young people and their families to reflect on their strengths, needs and desired outcomes, and to plan ahead for how they will achieve their goals.

16.4 Professionals from different agencies, families, friends and the wider community should work together in a coordinated manner around each young person or carer to help raise their aspirations and achieve the outcomes that matter to them. The purpose of carrying out transition assessments is to provide young people and their families with information so that they know what to expect in the future and can prepare for adulthood.

16.5 Transition assessments can in themselves be of benefit in providing solutions that do not necessarily involve the provision of services, and which may aid planning that helps to prevent, reduce or delay the development of needs for care or support. The local authorities’ own commissioning and procurement practices should take account of wider market shaping duties and therefore transition assessments should focus outcomes and well–being (see section 2.15 on Market shaping and commissioning). Transition assessments will also allow local authorities to better understand the needs of people in their population, and to plan resources and commission services for young people and carers accordingly.

Definitions

16.6 The Care Act contains provisions to help preparation for adulthood for 3 particular groups of people - children, young carers and child’s carers. See list of definitions below:

Child

In the context of this chapter, a child is most probably a young person in their teenage years preparing for their adult life. This chapter therefore uses the term ‘young person’ for people under 18 with care and support needs who are approaching transition, rather than the legal term ‘child’ contained in the Care Act itself.

Young person

see above

Adult carer

An adult carer of a young person preparing for adulthood, this is equivalent to the term ‘child’s carer’ in the Care Act itself.

Young carer

A young carer under 18 preparing for adulthood themselves.

Young person or carer

This is the general term in the chapter for all 3 groups – young people, adult carers and young carers. Where something does not apply to all 3 groups, the specific groups to whom it does apply are specified using the terms above.

Transition assessment

Each group has their own specific transition assessment respectively; a child’s needs assessment, a young carer’s assessment, and a child’s carer’s assessment. The term used in this chapter for all 3 is ‘transition assessment’.

Likely need

The duty to conduct a transition assessment applies when someone is likely to have needs for care and support (or support as a carer) under the Care Act when they or the person they care for transitions to the adult system.

Significant benefit

A transition assessment must be conducted for all those who have likely needs (see above), however the timing of this assessment will depend on when it is of significant benefit to the young person or carer. This will generally be at the point when their needs for care and support as an adult can be predicted reasonably confidently, but will also depend on a range of other factors discussed in the section below ‘When a transition assessment must be carried out’.

When a transition assessment must be carried out

16.7 Transition assessments should take place at the right time for the young person or carer and at a point when the local authority can be reasonably confident about what the young person’s or carer’s needs for care or support will look like after the young person in question turns 18. There is no set age when young people reach this point; every young person and their family are different, and as such, transition assessments should take place when it is most appropriate for them.

16.8 Local authorities must carry out a transition assessment of anyone in the 3 groups when there is significant benefit to the young person or carer in doing so, and if they are likely to have needs for care or support after turning 18. The provisions in the Care Act relating to transition to adult care and support are not only for those who are already receiving children’s services, but for anyone who is likely to have needs for adult care and support after turning 18.

16.9 That a young person or carer is ‘likely to have needs’ means they have any likely appearance of any need for care and support as an adult – not just those needs that will be deemed eligible under the adult statute. It is highly likely that young people and carers who are in receipt of children’s services would be ‘likely to have needs’ in this context, and local authorities should therefore carry out a transition assessment for those who are receiving children’s services as they approach adulthood, so that they have information about what to expect when they become an adult.

16.10 When considering if it is of ‘significant benefit’ to assess, the local authority should consider the circumstances of the young person or carer, and whether it is an appropriate time for the young person or carer to undertake an assessment which helps them to prepare for adulthood. The consideration of ‘significant benefit’ is not related to the level of a young person or carer’s needs, but rather to the timing of the transition assessment. When considering whether it is of significant benefit to assess, a local authority should consider factors which may contribute to establishing the right time to assess (including but not limited to the following):

• the stage they have reached at school and any upcoming exams
• whether the young person or carer wishes to enter further/higher education or training
• whether the young person or carer wishes to get a job when they become a young adult
• whether the young person is planning to move out of their parental home into their own accommodation
• whether the young person will have care leaver status when they become 18
• whether the carer of a young person wishes to remain in or return to employment when the young person leaves full time education
• the time it may take to carry out an assessment
• the time it may take to plan and put in place the adult care and support
• any relevant family circumstances
• any planned medical treatment

16.11 For young people with special educational needs (SEN) who have an Education, Health and Care (EHC) plan under the Children and Families Act, preparation for adulthood must begin from year 9 - see Special Educational needs & Disability (SEND) Code of Practice ‘Preparing for Adulthood’ . The transition assessment should be undertaken as part of one of the annual statutory reviews of the EHC plan, and should inform a plan for the transition from children’s to adult care and support.

16.12 Equally for those without EHC plans, early conversations with local authorities about preparation for adulthood are beneficial – when these conversations begin to take place will depend on individual circumstances. For care leavers, local authorities should consider using the statutory Pathway Planning process as the opportunity to carry out a transition assessment where appropriate.

16.13 Local authorities should not carry out the transition assessment at inappropriate times in a young person’s life, such as when they are sitting their exams and it would cause disruption. The SEND Code of Practice similarly states that local authorities must minimise disruption to the child and their family – for example by combining multiple appointments where possible. Local authorities should seek to agree the best time for assessments and planning with the young person or carer, and where appropriate, their family and any other relevant partners.

16.14 A young person or carer, or someone acting on their behalf, has the right to request a transition assessment. The local authority must consider such requests and whether the likely need and significant benefit conditions apply – and if so it must undertake a transition assessment. If the local authority thinks these conditions do not apply and refuses an assessment on that basis, it must provide its reasons for this in writing in a timely manner, and it must provide information and advice on what can be done to prevent or delay the development of needs for support.

16.15 Where it is judged by the local authority that the young person or carer is likely to have needs for care and support after turning 18, but that it is not yet of significant benefit to carry out a transition assessment, the local authority should consider indicating (when providing its written reasons for refusing the assessment) when it believes the assessment will be of significant benefit. In these circumstances, the onus is on the local authority to contact the young person or carer to agree the timing of the transition assessment, rather than leaving the young person or carer in uncertainty or having to make repeated requests for an assessment.

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Case study: When a transition assessment is of ‘significant benefit’ – Isabelle’s story

Isabelle is 15 years old with complex needs. She attends a residential school on a 38-week basis funded by education and social services. Care and support is currently required on the weekends and in holidays. Isabelle’s parents have approached the local authority requesting a transition assessment around the time of her 16th birthday. Initially the local authority’s reaction is that this is too soon to be of significant benefit. Since the support from school can continue until she is 19, they feel transition will be straightforward as adult services simply need to begin funding the package which is already in place.

However, when they talk in more detail to the school and the parents they realise that when Isabelle leaves school at 19 it will not be appropriate for her to live with her parents and she will require substantial supported living support and a college placement. Due to the nature of Isabelle’s needs, she will need a lengthy transition in order to get used to new staff, a new environment and a new educational setting. The college has also indicated that that they will need up to a year to plan for her start.

It is therefore of significant benefit for the transition assessment to take place around the age of 16, looking at both the funding for support from age 18 – 19 and the longer-term options. Once the assessment has identified the support Isabelle will be entitled to on leaving school, the planning process can begin and suitable support can be put in place by the time she leaves school.

If a transition assessment were to take place later, the local authority would be at risk of not promoting wellbeing in the areas of family relationships (because Isabelle could temporarily need to live with her parents while solutions are found at the last minute, which would not be appropriate) and control over day-to-day life (because Isabelle would very likely not have the same range of choices if planning and preparation were to be truncated).

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16.16 Where someone is refused (or they themselves refuse) a transition assessment, but at a later time makes a request for an assessment, the local authority must again consider whether the likely need and significant benefit conditions apply, and carry out an assessment if so. In more complex cases, it can take some time not only to carry out the assessment itself but to plan and put in place care and support. Social workers will often be the most appropriate lead professionals for complex cases. Transition assessments should be carried out early enough to ensure that the right care and support is in place when the young person moves to adult care and support.

16.17 When transition assessments take place too late and care and support is arranged in a hurry, it can result in care and support which does not best meet the young person or carer’s needs – and sometimes at greater financial cost to the local authority than if it had been planned properly in advance.

Identifying young people and young carers who are not already receiving children’s services

16.18 Most young people who receive transition assessments will be children in need under the Children Act 1989 and will already be known to local authorities. However, local authorities should consider how they can identify young people who are not receiving children’s services who are likely to have care and support needs as an adult. Key examples include:

• young people with degenerative conditions
• young people (for example with autism) whose needs have been largely met by their educational institution, but who once they leave, will require their needs to be met in some other way
• young people detained in the youth justice system who will move to the adult custodial estate
• young carers whose parents have needs below the local authority’s eligibility threshold but may nevertheless require advice or support to fulfil their potential, for example a child with deaf parents who is undertaking communication support
• young people and young carers receiving Children and Adolescent Mental Health Services (CAMHS) may also require care and support as adults even if they did not receive children’s services from the local authority

16.19 Even if they are not eligible for services, a transition assessment with good information and advice about support in the community can be particularly helpful for these groups as they are less likely to be aware of support available in the community.

16.20 Often when young people who have not been in contact with children’s services present to the local authority as a young adult, they do so with a high level of need for care and support. Local authorities should consider how to establish mechanisms in partnership with local educational institutions, health services and other agencies to identify these groups as early as possible in order to plan and prevent the development of care and support needs. (see chapter 15 on cooperation and integration and SEND Code Of Practice chapter 4 on joint commissioning, making effective relationships.

Adult carers and young carers

16.21 Preparation for adulthood will involve not only assessing how the needs of young people change as they approach adulthood but also how carers’, young carers’ and other family members’ needs might change. Local authorities must assess the needs of an adult carer where there is a likely need for support after the child turns 18 and it is of significant benefit to the carer to do so. For instance, some carers of disabled children are able to remain in employment with minimal support while the child has been in school. However, once the young person leaves education, it may be the case that the carer’s needs for support increase, and additional support and planning is required from the local authority to allow the carer to stay in employment.

16.22 The SEND Code of Practice sets out the importance of full-time programmes for young people aged 16 and over. For instance, some sixth forms or colleges offer 5 day placements which allow parents to remain in employment full time. However, for young people who do not have this opportunity, for example if their college offers only 3 day placements, transition assessments should consider if there is other provision and support for the young person such as volunteering, community participation or training which not only allows the carer to remain in full time employment, but also fulfils the young person’s wishes or equips them to live more independently as an adult (see chapter 4 on market shaping and SEND Code of Practice chapter 8 on preparation for adulthood).

16.23 Local authorities must also assess the needs of young carers as they approach adulthood. For instance, many young carers feel that they cannot go to university or enter employment because of their caring responsibilities. Transition assessments and planning must consider how to support young carers to prepare for adulthood and how to raise and fulfil their aspirations.

16.24 Local authorities must consider the impact on other members of the family (or other people the authority may feel appropriate) of the person receiving care and support. This will require the authority to identify anyone who may be part of the person’s wider network of care and support. For example, caring responsibilities could have an impact on siblings’ school work, or their aspirations to go to university. Young carers’ assessments should include an indication of how any care and support plan for the person(s) they care for would change as a result of the young carer’s change in circumstances. For example, i