Care Act s1-10

Section 1 – Promoting individual well-being

(1) The general duty of a local authority, in exercising a function under this Part in the case of an individual, is to promote that individual’s well-being.

(2) “Well-being”, in relation to an individual, means that individual’s well-being so far as relating to any of the following-

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

(3) In exercising a function under this Part in the case of an individual, a local authority must have regard to the following matters in particular-

(a) the importance of beginning with the assumption that the individual is best-placed to judge the individual’s well-being;
(b) the individual’s views, wishes, feelings and beliefs;
(c) the importance of preventing or delaying the development of needs for care and support or needs for support and the importance of reducing needs of either kind that already exist;
(d) the need to ensure that decisions about the individual are made having regard to all the individual’s circumstances (and are not based only on the individual’s age or appearance or any condition of the individual’s or aspect of the individual’s behaviour which might lead others to make unjustified assumptions about the individual’s well-being);
(e) the importance of the individual participating as fully as possible in decisions relating to the exercise of the function concerned and being provided with the information and support necessary to enable the individual to participate;
(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;
(g) the need to protect people from abuse and neglect;
(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.

(4) “Local authority” means-

(a) a county council in England,
(b) a district council for an area in England for which there is no county council,
(c) a London borough council, or
(d) the Common Council of the City of London.
The Government’s Explanatory Notes to the Bill for this Act say as follows:

“This section provides for a set of legal principles, which govern how local authorities are to carry out their care and support functions for adults under this Bill.

Subsection (1) establishes the overarching principle that local authorities must promote the well-being of the adult when carrying out functions under this Part of Bill in relation to that adult. This duty applies both in relation to adults who use services, and to carers. It also applies to children, in relation to the functions set out in sections 58 to 66.

The “well-being principle” applies to local authorities (and their officers) when they exercise a function under this Part in the case of an adult. It is not intended to be directly enforceable as an individual right, but to carry indirect legal weight, where a local authority’s failure to follow the principle may be challenged through judicial review.  “Well-being” is not defined precisely. However, subsection (2) provides guidance on the interpretation of the general duty in subsection (1). It lists outcomes or areas of activity, which develop the concept of well-being. The outcomes are not a series of requirements, but serve as a description to aid understanding.

The final element of the statutory principles is provided in subsection (3). This is a list of factors, which local authorities must consider when exercising any function, such as making a decision, about an adult, under Part 1 of the Bill.  The factors in subsection (3) direct local authorities on a number of issues that they must consider in complying with the general well-being principle. The list of factors is not in order of importance, and the weight afforded to each will differ according to the circumstances of the individual case. Moreover, it is not exhaustive. There may be other factors not listed which are relevant to the well-being of an individual, and which should be considered by decision-makers.”

 

Section 2 – Preventing needs for care and support

(1) A local authority must provide or arrange for the provision of services, facilities or resources, or take other steps, which it considers will-

(a) contribute towards preventing or delaying the development by adults in its area of needs for care and support;
(b) contribute towards preventing or delaying the development by carers in its area of needs for support;
(c) reduce the needs for care and support of adults in its area;
(d) reduce the needs for support of carers in its area.

(2) In performing that duty, a local authority must have regard to-

(a) the importance of identifying services, facilities and resources already available in the authority’s area and the extent to which the authority could involve or make use of them in performing that duty;
(b) the importance of identifying adults in the authority’s area with needs for care and support which are not being met (by the authority or otherwise);
(c) the importance of identifying carers in the authority’s area with needs for support which are not being met (by the authority or otherwise).

(3) Regulations may-

(a)  permit a local authority to make a charge for providing or arranging for the provision of services, facilities or resources, or for taking other steps, under this section;
(b)  prohibit a local authority from making a charge it would otherwise be permitted to make by virtue of paragraph (a).

(4) The regulations may in particular (in reliance on section 125(7)) make provision by reference to services, facilities or resources which-

(a)  are of a specified type;
(b)  are provided in specified circumstances;
(c)  are provided to an adult of a specified description;
(d)  are provided for a specified period only.

(5) A charge under the regulations may cover only the cost that the local authority incurs in providing or arranging for the provision of the service, facility or resource or for taking the other step.

(6) In cases where a local authority performs the duty under subsection (1) jointly with one or more other local authorities in relation to the authorities’ combined area—

(a) references in this section to a local authority are to be read as references to the authorities acting jointly, and
(b) references in this section to a local authority’s area are to be read as references to the combined area.

(7) Sections 21 (exception for persons subject to immigration control), 22 (exception for provision of health services) and 23 (exception for provision of housing etc.) apply in relation to the duty under subsection (1), but with the modifications set out in those sections.

(8) “Adult” means a person aged 18 or over.
The Government’s Explanatory Notes to the Bill for this Act say as follows:

“This section requires local authorities to take steps, including providing and arranging for services (“arranging for” may include commissioning from others), which are intended to prevent, reduce or delay needs for care and support for all local people including adults and carers.

Subsection (2) requires local authorities to have regard to how it could make the best use of community facilities to prevent, delay and reduce needs for care and support; and to have regard to identifying adults and carers in their area who have unmet needs for care and support, when providing or arranging for preventative services under this section. This section is intended to require steps that prevent, reduce and delay needs for care and support. This section relates to other local authority functions in Part 1 of the Bill, including duties under sections 4 and 5. Local authorities must give information about services that can delay, prevent and reduce needs for care and support in their area under section 4, and must shape the market with regards to such services under section 5.

Subsections (3) and (4) allow for regulations to specify where a local authority may charge for taking steps to prevent, reduce or delay needs for care and support. Any charge made under these regulations can cover only the cost to the local authority of providing or arranging the service. Subsection (3)(b) allows regulations to prohibit charging where subsection (3)(a) would otherwise allow this. This is to allow for local authorities to continue to charge for some preventative services as they do now (for example subsidised leisure services), and to enable local authorities to broaden access to services that can prevent, delay or reduce needs for care and support, that may fall outside of traditional models of care and support, to a wider range of adults and carers in their area. Regulations under section 14 will be used to continue current entitlements to free intermediate care for a specified period and minor aids and adaptations up to a certain cost.

Subsection (6) acknowledges that a local authority may take steps to prevent, reduce or delay needs for care and support together with one or more other local authorities.”

 

Section 3 – Promoting integration of care and support with health services etc.

(1)  A local authority must exercise its functions under this Part with a view to ensuring the integration of care and support provision with health provision and health-related provision where it considers that this would-

(a)  promote the well-being of adults in its area with needs for care and support and the well-being of carers in its area,
(b)  contribute to the prevention or delay of the development by adults in its area of needs for care and support or the development by carers in its area of needs for support, or
(c) improve the quality of care and support for adults, and of support for carers, provided in its area (including the outcomes that are achieved from such provision).

(2)  “Care and support provision” means-

(a)  provision to meet adults’ needs for care and support,
(b)  provision to meet carers’ needs for support, and
(c)  provision of services, facilities or resources, or the taking of other steps, under section 2.

(3)  “Health provision” means provision of health services as part of the health service.

(4)  “Health-related provision” means provision of services which may have an effect on the health of individuals but which are not-

(a)  health services provided as part of the health service, or
(b)  services provided in the exercise of social services functions (as defined by section 1A of the Local Authority Social Services Act 1970).

(5)  For the purposes of this section, the provision of housing is health-related provision.

(6)  In section 13N of the National Health Service Act 2006 (duty of NHS Commissioning Board to promote integration), at the end insert—

“(5) For the purposes of this section, the provision of housing accommodation is a health-related service.”

(7) In section 14Z1 of that Act (duty of clinical commissioning groups to promote integration), at the end insert—

“(4) For the purposes of this section, the provision of housing accommodation is a health-related service.”
The Government’s Explanatory Notes to the Bill for this Act say as follows:

“This section places a duty on local authorities to carry out their care and support responsibilities (including carers’ support and prevention services) with the aim of joining-up services with those provided by the NHS and other health-related services (for example, housing or leisure services). The duty will apply where the local authority considers that integration of services would either promote the wellbeing of adults with care and support needs (including carers), contribute to the prevention or delay of developing care needs, or improve the quality of care in the local authority’s area.”

 

Section 4 – Providing information and advice

(1)  A local authority 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.

(2)  The service must provide information and advice on the following matters in particular –

(a) the system provided for by this Part and how the system operates in the authority’s area,
(b)  the choice of types of care and support, and the choice of providers, available to those who are in the authority’s area,
(c)  how to access the care and support that is available,
(d)  how to access independent financial advice on matters relevant to the meeting of needs for care and support, and
(e)  how to raise concerns about the safety or well-being of an adult who has needs for care and support.

(3)  In providing information and advice under this section, a local authority must in particular-

(a)  have regard to the importance of identifying adults in the authority’s area who would be likely to benefit from financial advice on matters relevant to the meeting of needs for care and support, and
(b)  seek to ensure that what it provides is sufficient to enable adults –
(i)  to identify matters that are or might be relevant to their personal financial position that could be affected by the system provided for by this Part,
(ii)  to make plans for meeting needs for care and support that might arise, and
(iii)  to understand the different ways in which they may access independent financial advice on matters relevant to the meeting of needs for care and support.

(4)  Information and advice provided under this section must be accessible to, and proportionate to the needs of, those for whom it is being provided.

(5)  “Independent financial advice” means financial advice provided by a person who is independent of the local authority in question.

(6) In cases where a local authority performs the duty under subsection (1) jointly with one or more other local authorities by establishing and maintaining a service for their combined area-

(a)  references in this section to a local authority are to be read as references to the authorities acting jointly, and
(b)  references in this section to a local authority’s area are to be read as references to the combined area.
The Government’s Explanatory Notes to the Bill for this Act say as follows:

“This section replaces and expands duties in section 1 of the Chronically Sick and Disabled Persons Act 1970, by requiring local authorities to provide an information and advice service in relation to care and support for adults, and support for carers.  The service will be available to all people in the local authority’s area regardless of whether they have needs for care and support, or whether any needs they do have meet the eligibility criteria. The information and advice service should, where it is reasonable, also cover care and support services that, while physically provided outside the authority’s area, are usually available to its local population.

Subsection (2) sets out the high-level requirements for an information and advice service. This includes an explanation of how care and support operates in the authority’s area, how to access it, what services and providers are available, how to access independent financial advice and how to raise concerns about the safety or well-being of a person with care needs. Subject to subsections (3) and (4) it will be for local authorities to determine the precise scope and manner of the information and advice they will offer.

Subsection (3) states that local authorities must have regard to the importance of identifying people who would be likely to benefit from financial advice. They must provide sufficient information and advice to enable adults to consider the financial aspects of meeting their care and support needs and to make plans for how they might meet any future needs for care and support. As part of this, the local authority must seek to ensure that people understand how and where to get financial information and advice on the range of financial options available. For example, the information and advice should cover what people are likely to pay towards their care and support needs, alert them to potential benefits and financial entitlements, other financial options to help them pay or plan for care and support, including deferred payment arrangements, and where they can access appropriate, independent financial advice on these matters. This supports subsection (2) and the need to include information on how to access independent financial advice.

Subsection (4) states that information and advice should be accessible to all and provided in a proportionate manner to meet individual circumstances and needs. For example, an information leaflet may be sufficient for some people, for others it may be face-to-face discussion and advice, while some may require more concentrated access to advocacy services.”

 

Section 5 – Promoting diversity and quality in provision of services

(1)  A local authority must promote the efficient and effective operation of a market in services for meeting care and support needs with a view to ensuring that any person in its area wishing to access services in the market-

(a)  has a variety of providers to choose from who (taken together) provide a variety of services;
(b)  has a variety of high quality services to choose from;
(c)  has sufficient information to make an informed decision about how to meet the needs in question.

(2)  In performing that duty, a local authority must have regard to the following matters in particular-

(a)  the need to ensure that the authority has, and makes available, information about the providers of services for meeting care and support needs and the types of services they provide;
(b)  the need to ensure that it is aware of current and likely future demand for such services and to consider how providers might meet that demand;
(c)  the importance of enabling adults with needs for care and support, and carers with needs for support, who wish to do so to participate in work,
education or training;
(d)  the importance of ensuring the sustainability of the market (in circumstances where it is operating effectively as well as in circumstances where it is not);
(e)  the importance of fostering continuous improvement in the quality of such services and the efficiency and effectiveness with which such services are provided and of encouraging innovation in their provision;
(f)  the importance of fostering a workforce whose members are able to ensure the delivery of high quality services (because, for example, they
have relevant skills and appropriate working conditions).

(3)  In having regard to the matters mentioned in subsection (2)(b), a local authority must also have regard to the need to ensure that sufficient services are available for meeting the needs for care and support of adults in its area and the needs for support of carers in its area.

(4)  In arranging for the provision by persons other than it of services for meeting care and support needs, a local authority must have regard to the importance of promoting the well-being of adults in its area with needs for care and support and the well-being of carers in its area.

(5) In meeting an adult’s needs for care and support or a carer’s needs for support, a local authority must have regard to its duty under subsection (1).

(6)  In cases where a local authority performs the duty under subsection (1) jointly with one or more other local authorities in relation to persons who are in the authorities’ combined area-

(a)  references in this section to a local authority are to be read as references to the authorities acting jointly, and
(b)  references in this section to a local authority’s area are to be read as references to the combined area.

(7)  “Services for meeting care and support needs” means-

(a)  services for meeting adults’ needs for care and support, and
(b)  services for meeting carers’ needs for support.

(8)  The references in subsection (7) to services for meeting needs include a reference to services, facilities or resources the purpose of which is to contribute towards preventing or delaying the development of those needs.
The Government’s Explanatory Notes to the Bill for this Act say as follows:

“This section places a duty on local authorities to promote a diverse and high quality market of care and support services (including prevention services) for people in their local area. In particular, local authorities must act with a view to ensuring that there is a range of different services and providers to choose from.

Subsection (2) lists certain factors a local authority must consider when exercising this duty. These include the importance of ensuring the sustainability of the market and supporting continuous improvement in the quality of services; making available information about the services available to people in its area; the current and future demand for services in its area, and how this demand can be met by providers; the importance of carers and service users being able to undertake work, education and training; and the importance of fostering a suitable workforce.

Subsection (3) requires local authorities, when considering current and future local demand and how this might be met by providers, to consider the need for there to be sufficient services to meet the needs of people in their area.

Subsection (4) requires local authorities to consider, when making decisions about commissioning services, the importance of promoting the well-being of people with care and support needs and carers.

Subsection (5) requires that the local authority must have regard to the duty when either providing or arranging services to meet the care and support needs of adults with care needs and carers. This is because local authorities’ commissioning practices affect the local market of providers.

Subsection (6) acknowledges that local authorities might work together to exercise this duty. Local authorities might want, for example, to consider the sustainability and diversity of provision across their borders, in order to promote a flexible and responsive market for their local communities.”

 

Section 6 – Co-operating generally

(1)  A local authority must co-operate with each of its relevant partners, and each relevant partner must co-operate with the authority, in the exercise of-

(a)  their respective functions relating to adults with needs for care and support,
(b)  their respective functions relating to carers, and
(c)  functions of theirs the exercise of which is relevant to functions referred to in paragraph (a) or (b).

(2)  A local authority must co-operate, in the exercise of its functions under this Part, with such other persons as it considers appropriate who exercise functions, or are engaged in activities, in the authority’s area relating to adults with needs for care and support or relating to carers.

(3)  The following are examples of persons with whom a local authority may consider it appropriate to co-operate for the purposes of subsection (2)-

(a)  a person who provides services to meet adults’ needs for care and support, services to meet carers’ needs for support or services, facilities or resources of the kind referred to in section 2(1);
(b)  a person who provides primary medical services, primary dental services, primary ophthalmic services, pharmaceutical services or local pharmaceutical services under the National Health Service Act 2006;
(c)  a person in whom a hospital in England is vested which is not a health service hospital as defined by that Act;
(d)  a private registered provider of social housing.

(4)  A local authority must make arrangements for ensuring co-operation between-

(a)  the officers of the authority who exercise the authority’s functions relating to adults with needs for care and support or its functions relating to carers,
(b)  the officers of the authority who exercise the authority’s functions relating to housing (in so far as the exercise of those functions is relevant to functions referred to in paragraph (a)),
(c)  the Director of Children’s Services at the authority (in so far as the exercise of functions by that officer is relevant to the functions referred to in paragraph (a)), and
(d)  the authority’s director of public health (see section 73A of the National Health Service Act 2006).

(5)  The references in subsections (1) and (4)(a) to a local authority’s functions include a reference to the authority’s functions under sections 58 to 65 (transition for children with needs etc.).

(6)  The duties under subsections (1) to (4) are to be performed for the following purposes in particular-

(a)  promoting the well-being of adults with needs for care and support and of carers in the authority’s area,
(b)  improving the quality of care and support for adults and support for carers provided in the authority’s area (including the outcomes that are achieved from such provision),
(c)  smoothing the transition to the system provided for by this Part for persons in relation to whom functions under sections 58 to 65 are exercisable,
(d)  protecting adults with needs for care and support who are experiencing, or are at risk of, abuse or neglect, and
(e)  identifying lessons to be learned from cases where adults with needs for care and support have experienced serious abuse or neglect and applying those lessons to future cases.

(7)  Each of the following is a relevant partner of a local authority-

(a)  where the authority is a county council for an area for which there are district councils, each district council;
(b)  any local authority, or district council for an area in England for which there is a county council, with which the authority agrees it would be appropriate to co-operate under this section;
(c)  each NHS body in the authority’s area;
(d)  the Minister of the Crown exercising functions in relation to social security, employment and training, so far as those functions are exercisable in relation to England;
(e)  the chief officer of police for a police area the whole or part of which is in the authority’s area;
(f)  the Minister of the Crown exercising functions in relation to prisons, so far as those functions are exercisable in relation to England;
(g)  a relevant provider of probation services in the authority’s area;
(h)  such person, or a person of such description, as regulations may specify.

(8)  The reference to an NHS body in a local authority’s area is a reference to-

(a)  the National Health Service Commissioning Board, so far as its functions are exercisable in relation to the authority’s area,
(b)  a clinical commissioning group the whole or part of whose area is in the authority’s area, or
(c)  an NHS trust or NHS foundation trust which provides services in the authority’s area.

(9)  “Prison” has the same meaning as in the Prison Act 1952 (see section 53(1) of
that Act).

(10) “Relevant provider of probation services” has the meaning given by section 325 of the Criminal Justice Act 2003.
The Government’s Explanatory Notes to the Bill for this Act say as follows:

“This section requires local authorities and their “relevant partners” (listed in subsection (7)) to co-operate with each other in the exercise of their respective care and support functions, including those relating to carers and transition for children with needs to adult care and support. This duty does not confer any new functions but relates to cooperation in the exercise of the respective partners’ pre-existing functions relevant to adults with care and support needs and support for carers and children in transition.

Subsection (2) extends the duty of the local authority to cooperate with its partners to any other person or body who the authority considers appropriate. However subsection (2) does not require this person or body to co-operate in return.

Subsection (3) sets out examples of the types of other persons with whom it may be appropriate for a local authority to co-operate with under subsection (2).  This includes but is not limited to providers of care and support and carer’s support services, NHS primary health providers, independent hospitals and private registered providers of social housing.

Subsection (4) requires the local authority to ensure internal co-operation between its officers: those responsible for adult care and support, housing, public health, and children’s services. These officers are employees of the local authority, and are not therefore included in the list of external partners in subsection (7).

Subsection (6) sets out five aims of co-operation between partners. These are promoting the well-being of adults needing care and support and their carers, improving the quality of care and support for adults and support for carers provided, smoothing the transition from children’s to adult services, and protecting adults with safeguarding concerns, whether they are currently experiencing or at risk of abuse or neglect or to investigate past cases of serious abuse or neglect for the purposes of identifying and applying lessons to be learnt.  However, the purposes of co-operation are not limited to these matters alone.

This section does not require the local authority to take any specific steps to co-operate with relevant external partners, but there are a number of other 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. Under section 75 of the NHS Act 2006, a local authority may also contribute to a “pooled budget” with an NHS body – a shared fund out of which payments can be made to meet agreed priorities.”

 

Section 7 – Co-operating in specific cases

(1)  Where a local authority requests the co-operation of a relevant partner, or of a local authority which is not one of its relevant partners, in the exercise of a function under this Part in the case of an individual with needs for care and support or in the case of a carer, a carer of a child or a young carer, the partner or authority must comply with the request unless it considers that doing so-

(a)  would be incompatible with its own duties, or
(b)  would otherwise have an adverse effect on the exercise of its functions.

(2)  Where a relevant partner of a local authority, or a local authority which is not one of its relevant partners, requests the co-operation of the local authority in its exercise of a function in the case of an individual with needs for care and support or in the case of a carer, a carer of a child or a young carer, the local authority must comply with the request unless it considers that doing so-

(a)  would be incompatible with its own duties, or
(b)  would otherwise have an adverse effect on the exercise of its functions.

(3)  A person who decides not to comply with a request under subsection (1) or (2) must give the person who made the request written reasons for the decision.

(4)  “Relevant partner”, in relation to a local authority, has the same meaning as in
section 6.

(5)  “Carer of a child” means a person who is a carer for the purposes of section 60.
The Government’s Explanatory Notes to the Bill for this Act say as follows:

“This section supplements the general duty to cooperate in section 6 with a specific duty. This duty is intended to be used by local authorities or partners where co-operation is needed in the case of an individual who has needs for care and support. The duty is not limited to specific circumstances, but could be used, for example, when a child is preparing to move from children’s to adult services; in adult safeguarding enquiries; when an adult requires an assessment for NHS continuing healthcare; or, when an adult is moving between areas and requires a new needs assessment.

Subsection (1) states that a local authority may request co-operation from a relevant partner in relation to the case of an individual adult or carer, and the relevant partner must co-operate as requested, unless doing so would be incompatible with the relevant partner’s own functions or duties.

Subsection (2) creates the same duty but in reverse, with the request made by the relevant partner to the local authority.  If either the local authority, or the relevant partner, decide not to co-operate after receiving a request, then subsection (3) requires them to write to the other person setting out their reasons for not doing so. Local authorities and their relevant partners must respond to requests to co-operate under their general public law duties to act reasonably, and failure to respond within a reasonable time frame could be subject to judicial review.”

 

Section 8 – How to meet needs

(1)  The following are examples of what may be provided to meet needs under sections 18 to 20-

(a) accommodation in a care home or in premises of some other type;
(b)  care and support at home or in the community;
(c)  counselling and other types of social work;
(d)  goods and facilities;
(e)  information, advice and advocacy.

(2)  The following are examples of the ways in which a local authority may meet needs under sections 18 to 20-

(a)  by arranging for a person other than it to provide a service;
(b)  by itself providing a service;
(c)  by making direct payments.

(3)  “Care home” has the meaning given by section 3 of the Care Standards Act 2000.
The Government’s Explanatory Notes to the Bill for this Act say as follows:

“The needs which adults have for care and support will be specific to that individual, and there are many ways in which local authorities can meet such needs. This section is intended to provide some indication of the range of what a local authority can do to meet an adult’s needs.

Subsection (1) lists some general examples of the types of care and support that could be arranged or provided to meet the needs of both adults needing care and carers. This is not intended to be a definition of care and support or an exhaustive list, but to give a partial description for clarity. Local authorities may arrange or provide for any combination or type of service to meet needs, other than those services which they are prohibited from providing because they fall their outside their care and support functions (see sections 22 and 23). The examples in subsection (1) are applicable both to carers and to adults needing care.

In meeting any adult’s needs, a local authority may provide a service itself or arrange for a service to be provided by another organisation. The local authority may also make a direct payment in lieu of a service (as detailed in sections 31 and 32), or undertake any combination of these approaches.”

 

Section 9 – Assessment of an adult’s needs for care and support

(1)  Where it appears to a local authority that an adult may have needs for care and support, the authority must assess-

(a) whether the adult does have needs for care and support, and
(b)  if the adult does, what those needs are.

(2)  An assessment under subsection (1) is referred to in this Part as a “needs assessment”.

(3)  The duty to carry out a needs assessment applies regardless of the authority’s view of-

(a)  the level of the adult’s needs for care and support, or
(b)  the level of the adult’s financial resources.

(4)  A needs assessment must include an assessment of-

(a)  the impact of the adult’s needs for care and support on the matters specified in section 1(2),
(b)  the outcomes that the adult wishes to achieve in day-to-day life, and
(c)  whether, and if so to what extent, the provision of care and support could contribute to the achievement of those outcomes.

(5)  A local authority, in carrying out a needs assessment, must involve-

(a)  the adult,
(b)  any carer that the adult has, and
(c)  any person whom the adult asks the authority to involve or, where the adult lacks capacity to ask the authority to do that, any person who appears to the authority to be interested in the adult’s welfare.

(6)  When carrying out a needs assessment, a local authority must also consider-

(a)  whether, and if so to what extent, matters other than the provision of
care and support could contribute to the achievement of the outcomes
that the adult wishes to achieve in day-to-day life, and
(b)  whether the adult would benefit from the provision of anything under
section 2 or 4 or of anything which might be available in the community.

(7)  This section is subject to section 11(1) to (4) (refusal by adult of assessment).
The Government’s Explanatory Notes to the Bill for this Act say as follows:

“This section requires a local authority to carry out an assessment, which is referred to as a “needs assessment”, where it appears that an adult may have needs for care and support. The objective of the needs assessment is to determine whether the adult has care and support needs and what those needs may be. It is the mechanism by which local authorities assess whether a person requires some form of care and support, and whether the nature of their needs is such that the local authority will be under a duty to meet them (in other words, whether the person has “eligible” needs). Whether or not a person has eligible needs, they will receive tailored information on the services available in their local community to help meet the needs they do have.

Subsection (3) makes it clear that the local authority must carry out the assessment wherever it appears that an adult may have needs for care and support, whether or not it thinks the adult has eligible needs, and regardless of the adult’s financial resources.

Subsection (4) stipulates that the assessment must consider how the person’s needs impact on their well-being and the outcomes that an individual wishes to achieve in day-to-day life: for example, being able to live at home and feed themselves, and whether care and support can help them to meet those outcomes.

Subsection (5) requires the local authority to involve the adult, any carer they may have, and anyone else the adult may ask to be involved in the needs assessment. Where a person lacks capacity the local authority must also involve any person who appears to be interested in the individual’s welfare. The intention is to allow the adult to set the outcomes they wish to achieve and to be fully involved throughout the assessment process. Where the adult would otherwise face difficulty in being involved in the process, for example due to communication problems, and they do not have anyone to support them, the adult will be entitled to the support of an advocate to assist them (as provided for in section 68).

Subsection (6) requires the local authority to consider whether, and to what extent, matters other than the provision of care and support could help them reach the outcomes they want to achieve. This might include the adult’s own capabilities and what they may be able to do themselves to achieve those outcomes.  It also requires local authorities to consider whether the adult would benefit from its prevention or information and advice services (provided under section 2 or 4) or any other services that might be available in the community. For example the local authority may consider it would benefit the adult to undergo a reablement programme, and this could take place in parallel with the assessment process.

The section brings together a number of existing powers and duties to create a single legal basis for assessment, including section 2 of the Chronically Sick and Disabled Persons Act 1970; section 4 of the Disabled Persons (Services, Consultation and Representation) Act 1986 and section 47(1) of the National Health Service and Community Care Act 1990.”

 

Section 10 – Assessment of a carer’s needs for support

(1) Where it appears to a local authority that a carer may have needs for support (whether currently or in the future), the authority must assess-

(a)  whether the carer does have needs for support (or is likely to do so in the future), and
(b)  if the carer does, what those needs are (or are likely to be in the future).

(2)  An assessment under subsection (1) is referred to in this Part as a “carer’s assessment”.

(3)  “Carer” means an adult who provides or intends to provide care for another adult (an “adult needing care”); but see subsections (9) and (10).

(4)  The duty to carry out a carer’s assessment applies regardless of the authority’s
view of-

(a) the level of the carer’s needs for support, or
(b)  the level of the carer’s financial resources or of those of the adult needing care.

(5)  A carer’s assessment must include an assessment of-

(a)  whether the carer is able, and is likely to continue to be able, to provide care for the adult needing care,
(b)  whether the carer is willing, and is likely to continue to be willing, to do so,
(c)  the impact of the carer’s needs for support on the matters specified in section 1(2),
(d)  the outcomes that the carer wishes to achieve in day-to-day life, and (e) whether, and if so to what extent, the provision of support could contribute to the achievement of those outcomes.

(6)  A local authority, in carrying out a carer’s assessment, must have regard to-

(a)  whether the carer works or wishes to do so, and
(b)  whether the carer is participating in or wishes to participate in education, training or recreation.

(7)  A local authority, in carrying out a carer’s assessment, must involve-

(a) the carer, and
(b)  any person whom the carer asks the authority to involve.

(8)  When carrying out a carer’s assessment, a local authority must also consider-

(a)  whether, and if so to what extent, matters other than the provision of support could contribute to the achievement of the outcomes that the carer wishes to achieve in day-to-day life, and
(b)  whether the carer would benefit from the provision of anything under section 2 or 4 or of anything which might be available in the community.

(9)  An adult is not to be regarded as a carer if the adult provides or intends to provide care-

(a)  under or by virtue of a contract, or
(b)  as voluntary work.

(10)  But in a case where the local authority considers that the relationship between the adult needing care and the adult providing or intending to provide care is such that it would be appropriate for the latter to be regarded as a carer, that adult is to be regarded as such (and subsection (9) is therefore to be ignored in that case).

(11)  The references in this section to providing care include a reference to providing practical or emotional support.

(12)  This section is subject to section 11(5) to (7) (refusal by carer of assessment).
The Government’s Explanatory Notes to the Bill for this Act say as follows:

“This section creates a single duty to assess carers.  It requires a local authority to carry out an assessment, known as a “carer’s assessment”, where it appears that a carer may have needs for support at that time, or in the future. The aim of the assessment is to determine whether a carer has support needs either currently or, possibly, in the future and what those needs may be.  The duty to assess a carer replaces existing duties in relation to the assessment of adult carers in section 1(1) of the Carers (Recognition and Services) Act 1995 and section 1 of the Carers and Disabled Children Act 2000.

A carer is defined as an adult who provides or intends to provide care for another adult. The section makes clear care includes the provision of practical or emotional support. This definition is subject to the proviso that those who care on a contractual or volunteering basis are not considered to be carers for the purposes of this Part. However, if the local authority thinks it is appropriate for such an individual (even if there is a contractual or volunteering element to the relationship) to be treated as a carer, then it may do so.

The duty to assess applies regardless of any views the local authority may have about the level of a carer’s needs for support or the financial resources of either the person needing care or the carer. The local authority must involve the carer and any other person nominated by the carer, when carrying out a carer’s assessment.  A carer’s assessment must consider certain important factors. These include the carer’s ability and willingness to provide care and support, both now and in the future; the impact of caring on the carer’s wellbeing; and the outcomes that the carer wishes to achieve in day to day life. In carrying out the assessment the local authority must also have regard to whether a carer works or wishes to work, or participates in, or would like to participate in, education, training or recreation.

Subsection (8) requires the local authority to consider whether and to what extent matters other than the provision of care and support could help the carer reach the outcomes they want to achieve. It also requires local authorities to consider whether the carer would benefit from its prevention or information and advice services or any other services that might be available in the community.”

 

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