Care Act s11-20

Section 11 – Refusal of assessment

(1)  Where an adult refuses a needs assessment, the local authority concerned is not required to carry out the assessment (and section 9(1) does not apply in the adult’s case).

(2)  But the local authority may not rely on subsection (1) (and so must carry out a needs assessment) if-

(a)  the adult lacks capacity to refuse the assessment and the authority is satisfied that carrying out the assessment would be in the adult’s best
interests, or
(b)  the adult is experiencing, or is at risk of, abuse or neglect.

(3)  Where, having refused a needs assessment, an adult requests the assessment, section 9(1) applies in the adult’s case (and subsection (1) above does not).

(4)  Where an adult has refused a needs assessment and the local authority concerned thinks that the adult’s needs or circumstances have changed, section 9(1) applies in the adult’s case (but subject to further refusal as mentioned in subsection (1) above).

(5)  Where a carer refuses a carer’s assessment, the local authority concerned is not required to carry out the assessment (and section 10(1) does not apply in the carer’s case).

(6)  Where, having refused a carer’s assessment, a carer requests the assessment, section 10(1) applies in the carer’s case (and subsection (5) above does not).

(7)  Where a carer has refused a carer’s assessment and the local authority concerned thinks that the needs or circumstances of the carer or the adult needing care have changed, section 10(1) applies in the carer’s case (but subject to further refusal as mentioned in subsection (5) above).
The Government’s Explanatory Notes to the Bill for this Act say as follows:

“This section sets out what is to happen where an adult or a carer refuses to have a needs or carer’s assessment.  Normally if an adult refuses a needs assessment or a carer’s assessment, the local authority need not carry it out.  However, the section specifies that there are two situations in which the local authority must carry out a needs assessment even if the adult refuses an assessment: a) if the adult lacks the capacity to agree to an assessment but the local authority is satisfied that an assessment would be in their best interests; and b) if the adult is at risk of harm or financial abuse.  Where a person has refused a needs assessment or carer’s assessment and the local authority thinks the circumstances have changed, the duty to carry out an assessment applies, unless the person continues to refuse.”

 

Section 12 – Assessments under sections 9 and 10: further provision

(1)  Regulations must make further provision about carrying out a needs or carer’s assessment; the regulations may, in particular-

(a)  require the local authority, in carrying out the assessment, to have regard to the needs of the family of the adult to whom the assessment
relates;
(b)  specify other matters to which the local authority must have regard in carrying out the assessment (including, in particular, the matters to
which it must have regard in seeking to ensure that the assessment is carried out in an appropriate and proportionate manner);
(c)  specify steps that the local authority must take for the purpose of ensuring that the assessment is carried out in an appropriate and
proportionate manner;
(d)  specify circumstances in which the assessment may or must be carried out by a person (whether or not an officer of the authority) who has
expertise in a specified matter or is of such other description as is specified, jointly with or on behalf of the local authority;
(e)  specify circumstances in which the adult to whom the assessment relates may carry out the assessment jointly with the local authority;
(f)  specify circumstances in which the local authority must, before carrying out the assessment or when doing so, consult a person who
has expertise in a specified matter or is of such other description as is specified;
(g)  specify circumstances in which the local authority must refer the adult concerned for an assessment of eligibility for NHS continuing healthcare.

(2)  The regulations may include provision for facilitating the carrying out of a needs or carer’s assessment in circumstances specified under subsection (1)(d) or (e); they may, for example, give the local authority power to provide the person carrying out the assessment-

(a)  in the case of a needs assessment, with information about the adult to whom the assessment relates;
(b)  in the case of a carer’s assessment, with information about the carer to whom the assessment relates and about the adult needing care;
(c) in either case, with whatever resources, or with access to whatever facilities, the authority thinks will be required to carry out the assessment.

(3)  The local authority must give a written record of a needs assessment to-

(a)  the adult to whom the assessment relates,
(b)  any carer that the adult has, if the adult asks the authority to do so, and
(c)  any other person to whom the adult asks the authority to give a copy.

(4)  The local authority must give a written record of a carer’s assessment to-

(a)  the carer to whom the assessment relates,
(b)  the adult needing care, if the carer asks the authority to do so, and
(c)  any other person to whom the carer asks the authority to give a copy.

(5)  A local authority may combine a needs or carer’s assessment with an assessment it is carrying out (whether or not under this Part) in relation to
another person only if the adult to whom the needs or carer’s assessment relates agrees and –

(a)  where the combination would include an assessment relating to another adult, that other adult agrees;
(b)  where the combination would include an assessment relating to a child (including a young carer), the consent condition is met in relation to the child.

(6)  The consent condition is met in relation to a child if-

(a)  the child has capacity or is competent to agree to the assessments being combined and does so agree, or
(b)  the child lacks capacity or is not competent so to agree but the local authority is satisfied that combining the assessments would be in the
child’s best interests.

(7)  Where a local authority is carrying out a needs or carer’s assessment, and there is some other assessment being or about to be carried out in relation to the adult to whom the assessment relates or in relation to a relevant person, the local authority may carry out that other assessment-

(a)  on behalf of or jointly with the body responsible for carrying it out, or
(b)  if that body has arranged to carry out the other assessment jointly with another person, jointly with that body and the other person.

(8)  A reference to a needs or carer’s assessment includes a reference to a needs or carer’s assessment (as the case may be) which forms part of a combined assessment under subsection (5).

(9) A reference to an assessment includes a reference to part of an assessment.

(10)  “NHS continuing health care” is to be construed in accordance with standing rules under section 6E of the National Health Service Act 2006.

(11)  A person is a “relevant person”, in relation to a needs or carer’s assessment, if it would be reasonable to combine an assessment relating to that person with the needs or carer’s assessment (as mentioned in subsection (5)).
The Government’s Explanatory Notes to the Bill for this Act say as follows:

“This section requires the Secretary of State to make regulations about how a needs assessment or a carer’s assessment is carried out, to ensure consistent practice in the key elements of the assessment process.  The regulations may in particular make provision about matters that a local authority must consider when carrying out an assessment, and about the assessment process, to ensure that it is carried out in an appropriate and proportionate manner. The local authority may be required to have regard to the family needs of the person being assessed, for instance the need to ensure that a child is not undertaking an inappropriate caring role for the adult concerned. Regulations may specify who may or must carry out an assessment, in particular that an expert must carry out the assessment in cases where the adult or carer has a complex condition, including allowing for self-assessment, joint assessments, and for a third party to carry out the assessment on behalf of the local authority.  They may also specify when a local authority should refer a person for assessment by the NHS when they believe that the person has NHS continuing healthcare needs.  This section also makes clear that a local authority may combine a needs or carer’s assessment with some other assessment it is carrying out of the individual or another person, provided that both individuals agree or in the case of a child who lacks capacity or is not competent to agree, provided it is satisfied that combining the assessments would be in the child’s best interests. For example, a local authority may combine an assessment of a young carer with the needs assessment of the adult he or she cares for. This section also ensures that a local authority, when carrying out a needs or carer’s assessment, may work jointly with or on behalf of another body which is carrying out another assessment of the person or, for example, someone that person is caring for or who cares for that person. For example, if a local authority is carrying out a carer’s assessment, and an NHS body is carrying out a continuing healthcare assessment of the person he or she is caring for, the local authority could jointly carry out the continuing healthcare assessment jointly with the NHS body.”

 

Section 13 – The eligibility criteria

(1)  Where a local authority is satisfied on the basis of a needs or carer’s assessment that an adult has needs for care and support or that a carer has needs for support, it must determine whether any of the needs meet the eligibility criteria (see subsection (7)).

(2)  Having made a determination under subsection (1), the local authority must give the adult concerned a written record of the determination and the reasons for it.

(3)  Where at least some of an adult’s needs for care and support meet the eligibility criteria, the local authority must-

(a)  consider what could be done to meet those needs that do,
(b)  ascertain whether the adult wants to have those needs met by the local authority in accordance with this Part, and
(c)  establish whether the adult is ordinarily resident in the local authority’s area.

(4)  Where at least some of a carer’s needs for support meet the eligibility criteria, the local authority must-

(a)  consider what could be done to meet those needs that do, and
(b)  establish whether the adult needing care is ordinarily resident in the local authority’s area.

(5)  Where none of the needs of the adult concerned meet the eligibility criteria, the local authority must give him or her written advice and information about-

(a)  what can be done to meet or reduce the needs;
(b)  what can be done to prevent or delay the development of needs for care and support, or the development of needs for support, in the future.

(6)  Regulations may make provision about the making of the determination under subsection (1).

(7)  Needs meet the eligibility criteria if-

(a) they are of a description specified in regulations, or
(b)  they form part of a combination of needs of a description so specified.

(8)  The regulations may, in particular, describe needs by reference to-

(a)  the effect that the needs have on the adult concerned;
(b)  the adult’s circumstances.
The Government’s Explanatory Notes to the Bill for this Act say as follows:

“Having carried out a needs assessment or a carer’s assessment, this section requires local authorities to determine whether a person’s needs are “eligible” needs. In other words, whether they meet the eligibility criteria which are to be set out in regulations. “Eligible” needs are those needs of a level or nature which the local authority may be under a duty to meet. The use of the word “eligible” here refers only to the person’s needs, not to their financial resources or other circumstances.

As subsection (1) sets out, provided that a local authority is satisfied on the basis of an assessment that an individual has any needs, of whatever level, the first requirement following an assessment is for the local authority to establish whether those are needs which the local authority must meet. Everyone will receive a written record of that decision, whether their needs are eligible or not.  If the person or carer does have eligible needs, subsections (3) and (4) require the local authority to establish the adult’s ordinary residence and consider the support (of whatever form) that could be provided to meet those needs.

Subsection (3)(b) requires the local authority to ascertain whether the adult wants to have their needs met by the local authority. This allows individuals who do not want the local authority to meet their needs to take an independent personal budget (as set out at section 28) and start their care account. This duty is not replicated for carers in subsection (4), as the cap on costs does not apply to carers.  Where the individual or carer’s needs do not meet the eligibility criteria, subsection (5) requires the local authority to provide them with advice on what services are available in the community to meet the needs they do have and to prevent or delay their need for care and support. This will ensure people are helped to access local services, which may be provided by the local authority or by another organisation.

Subsection (6) provides for the Secretary of State to set out the eligibility framework in regulations. The regulations will set out how a local authority must go about determining whether an adult’s needs meet the eligibility criteria.  It provides the power for Secretary of State to set out which needs are “eligible” needs, to enable local authorities to make the determination required in subsection (1).

Subsection (7) specifies that a person’s needs will meet the eligibility criteria if they are of a description specified in the regulations.  The regulations will prescribe the minimum level of needs which local authorities must meet, subject to the conditions set out in section 18. Local authorities can decide to arrange services to meet needs at a lower level.”

 

Section 14 – Power of local authority to charge

(1)  A local authority—

(a) may make a charge for meeting needs under sections 18 to 20, and
(b)  where it is meeting needs because Condition 2 in section 18 or Condition 2 or 4 in section 20 is met, may make a charge (in addition to the charge it makes under paragraph (a)) for putting in place the arrangements for meeting those needs.

(2)  The power to make a charge under subsection (1) for meeting needs under section 18 is subject to section 15.

(3)  The power to make a charge under subsection (1) for meeting a carer’s needs for support under section 20 by providing care and support to the adult needing care may not be exercised so as to charge the carer.

(4)  A charge under subsection (1)(a) may cover only the cost that the local authority incurs in meeting the needs to which the charge applies.

(5) Regulations may make provision about the exercise of the power to make a charge under subsection (1).

(6)  Regulations may prohibit a local authority from making a charge under subsection (1); and the regulations may (in reliance on section 125(7)) prohibit a local authority from doing so where, for example, the care and support or the support-

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

(7)  A local authority may not make a charge under subsection (1) if the income of the adult concerned would, after deduction of the amount of the charge, fall below such amount as is specified in regulations; and the regulations may in particular (in reliance on section 125(7)) specify-

(a)  different amounts for different descriptions of care and support;
(b)  different amounts for different descriptions of support.

(8)  Regulations under subsection (7) may make provision as to cases or circumstances in which an adult is to be treated as having income that would, or as having income that would not, fall below the amount specified in the regulations if a charge were to be made.
The Government’s Explanatory Notes to the Bill for this Act say as follows:

“This section gives local authorities a general power to charge for certain types of care and support, at their discretion.  If it does exercise this power, subsection (4) stipulates that a local authority may not charge a person more than what it costs it to provide or arrange the care and support. This general power replaces the existing duty on local authorities to charge for care home accommodation set out in section 22(1) of the National Assistance Act 1948, and powers to charge for other types of care and support (including those under section 17 of the Health and Social Services and Social Security Adjudications Act 1983, and section 8 of the Carers and Disabled Children Act 2000).

Subsection (2) provides that the power to charge is subject to section 15.  Section 15(1) stipulates that the local authority cannot charge an adult for meeting needs if the adult has reached the cap on care costs; however section 15(7) makes clear that a local authority can still charge for daily living costs.  Therefore, even when someone has reached the cap, they still can be charged if their care includes daily living costs.

Subsection (3) stipulates that where a local authority makes a charge under subsection
(1) for meeting a carer’s needs by providing care and support to an adult needing care it may not charge the carer.

The power to charge extends to all types of care and support, unless regulations state that the specific service must be provided free. Certain services or activities cannot be charged for: for example, needs assessments or carer’s assessments. Subsection (6) gives examples of how regulations might define the provision of care and support to be provided free of charge. These regulations will replace those made under section 15 of the Community Care (Delayed Discharges etc.) Act 2003.

Subsection (7) ensures that a person’s income does not fall below a certain amount as a result of charging. The amount will be specified in regulations, which could specify different amounts for different circumstances. For example, setting a personal expenses allowance for care home residents or specifying the amount below which the income of a person receiving care and support in their home may not fall.

Subsection (8) enables regulations to specify cases or circumstances where an adult can be treated as having income that would (or would not) fall below a certain amount as a result of charging. For example, in a case where a local authority would make a notional charge, regulations could ensure that a person who receives a certain welfare benefit is automatically exempt from that charge. This helps protect the person’s income while giving greater flexibility to the local authority not to have to carry out a financial assessment where the care package is of low value.  When a person has care and support needs but does not qualify for financial support from the local authority, they are still able to request that the local authority arrange the care and support that they require on their behalf. Where the local authority arranges the care and support necessary for that individual, subsection (1)(b) gives the local authority a power to charge a fee to cover the costs of arranging that care and support. However, the local authority may not charge such fees in relation to any types of care and support specified in the regulations under subsection (6).”

 

Section 15 – Cap on care costs

(1)  A local authority may not make a charge under section 14 for meeting an adult’s needs under section 18 if the total of the costs accrued in meeting the adult’s eligible needs after the commencement of this section exceeds the cap on care costs.

(2)  The reference to costs accrued in meeting eligible needs is a reference-

(a)  in so far as the local authority met those needs, to the cost to the local authority of having done so (as reckoned from the costs specified in the personal budget for meeting those needs (see section 26));
(b)  in so far as another local authority met the needs, to the cost to that other local authority of having done so (as reckoned from the costs so specified for meeting those needs);
(c)  in so far as a person other than a local authority met the needs, to what the cost of doing so would have been to the local authority which would otherwise have done so (as reckoned from the costs specified in the independent personal budget for meeting those needs (see section 28).

(3)  An adult’s needs are “eligible needs” if, at the time they were met-

(a)  they met the eligibility criteria,
(b)  they were not being met by a carer, and
(c)  the adult was ordinarily resident or present in the area of a local authority.

(4) The “cap on care costs” is the amount specified as such in regulations; and the regulations may in particular (in reliance on section 125(7))-

(a)  specify different amounts for persons of different age groups;
(b)  specify zero as the amount for persons of a specified description.

(5)  The total of the costs accrued in meeting an adult’s eligible needs after the commencement of this section (as referred to in subsection (1)) is referred to in this Part as the adult’s “accrued costs”.

(6)  Where the costs accrued include daily living costs, the amount attributable to the daily living costs is to be disregarded in working out for the purposes of subsection (1) the total of the costs accrued in meeting an adult’s eligible needs after the commencement of this section.

(7)  Where the cost to a local authority of meeting an adult’s needs under section 18 includes daily living costs, and the accrued costs exceed the cap on care costs (with the result that subsection (1) applies), the local authority may nonetheless make a charge to cover the amount attributable to those daily living costs.

(8)  For the purposes of this Part, the amount attributable to an adult’s daily living costs is the amount specified in, or determined in accordance with, regulations.
The Government’s Explanatory Notes to the Bill for this Act say as follows:

“This section establishes a limit on the amount that adults can be required to pay towards eligible care costs over their lifetime. Eligible care costs are the costs of meeting eligible needs that a local authority would meet under section 18. These costs are either specified in a personal budget (under section 26) where the local authority is meeting the person’s needs, or in an independent personal budget (under section 28) where the person has decided that they do not want the local authority to meet their needs.

Subsection (1) restricts local authorities from charging for eligible care costs once the amount of a person’s accrued care costs reach the level of the cap.

Subsection (2) defines what is meant by the costs accrued in meeting eligible needs as being those costs that the local authority would incur if it, or another local authority were to meet the person’s needs itself, or, in the case of a person who has an independent personal budget under section 28, what the cost to the local authority of meeting the person’s needs would be.

Subsection (3) defines eligible needs as those that meet the eligibility criteria and are not being met by a carer. Adults must also be ordinary resident, or present in the local authority area to have eligible needs.

Subsection (4) provides for the level of the cap to be set in regulations, and includes power to set the cap at different amounts for people of different ages. This will allow the cap to be set at different levels for working age adults, and includes the possibility of setting the cap at zero for specified categories of person, for example people who have eligible needs for care and support when they turn 18.

When a person receives care and support in a care home, daily living costs such as food and lighting should not count towards an adult’s accrued costs; subsection (6) ensures that where the costs of meeting a person’s needs includes such daily living costs, these will be disregarded when measuring progress towards the cap.

Subsection (7) allows a local authority to continue to charge for the daily living costs once the adult has reached the cap.  Subsection (8) provides a regulation making power to set the amount that will be considered as representing an adult’s daily living costs.  The funding provisions are expected to be commenced in April 2016, and eligible care costs will only start counting towards the cap from the date of commencement of the sections.”

 

Section 16 – Cap on care costs: annual adjustment

(1)  Where it appears to the Secretary of State that the level of average earnings in England is different at the end of a review period from what it was at the beginning of that period, the Secretary of State must make regulations under section 15(4) to vary the cap on care costs by the percentage increase or decrease by which that level has changed.

(2)  If a variation is made under subsection (1), each adult’s accrued costs are to be varied by the same percentage with effect from when the variation itself takes effect (and local authorities must accordingly ensure that care accounts and other records reflect the variation).

(3)  The “level of average earnings in England” means the amount which represents the average annual earnings in England estimated in such manner as the Secretary of State thinks fit.

(4)  “Review period” means-

(a)  the period of 12 months beginning with the day on which section 15 comes into force, and
(b)  each subsequent period of 12 months.

(5)  The duty under subsection (1) does not restrict the exercise of the power to make regulations under section 15(4).
The Government’s Explanatory Notes to the Bill for this Act say as follows:

“This section requires annual adjustments in order to ensure that the level of the cap and an adult’s accrued costs keep pace with inflation.  Subsection (2) ensures that an adult’s accrued costs are adjusted by the same measure as the cap, so that if someone was previously 50% of the way towards the cap, then they will remain so after adjustment. Subsection (3) specifies the meaning of “average earnings” for the purposes of this section and subsection (4) requires adjustment to be considered annually following commencement of the section.  Subsection (5) makes it clear that the power to set the level of the costs cap in section 15 is not restricted by the annual adjustment.”

 

Section 17 – Assessment of financial resources

(1)  Where a local authority, having made a determination under section 13(1), thinks that, if it were to meet an adult’s needs for care and support, it would charge the adult under section 14(1) for meeting at least some of the needs, it must assess-

(a)  the level of the adult’s financial resources, and
(b)  the amount (if any) which the adult would be likely to be able to pay towards the cost of meeting the needs for care and support.

(2)  Where a local authority thinks that, in meeting an adult’s needs for care and support, it would make a charge under section 15(7), it must assess-

(a)  the level of the adult’s financial resources, and
(b)  the amount (if any) which the adult would be likely to be able to pay towards the amount attributable to the adult’s daily living costs.

(3)  Where a local authority, having made a determination under section 13(1), thinks that, if it were to meet a carer’s needs for support, it would charge the carer under section 14(1) for meeting at least some of the needs, it must assess-

(a)  the level of the carer’s financial resources, and
(b)  the amount (if any) which the carer would be likely to be able to pay towards the cost of meeting the needs for support.

(4)  Where a local authority, having made a determination under section 13(1), thinks that, if it were to meet a carer’s needs for support, it would charge the adult needing care under section 14(1) for meeting at least some of the needs, it must assess-

(a)  the level of the financial resources of the adult needing care, and
(b)  the amount (if any) which the adult needing care would be likely to be able to pay towards the cost of meeting the carer’s needs for support.

(5)  An assessment under this section is referred to in this Part as a “financial assessment”.

(6)  A local authority, having carried out a financial assessment, must give a written record of the assessment to the adult to whom it relates.

(7)  Regulations must make provision about the carrying out of a financial assessment.

(8)  The regulations must make provision as to cases or circumstances in which, if the financial resources of an adult who has needs for care and support (whether in terms of income, capital or a combination of both) exceed a specified level, a local authority is not permitted to, or may (but need not)-

(a)  in a case where the adult’s accrued costs do not exceed the cap on care costs, pay towards the cost of the provision of care and support for the adult;
(b)  in a case where the adult’s accrued costs exceed the cap on care costs, pay towards the amount attributable to the adult’s daily living costs.

(9)  The regulations must make provision as to cases or circumstances in which, if the financial resources of a carer who has needs for support or of the adult needing care (whether in terms of income, capital or a combination of both) exceed a specified level, a local authority is not permitted to, or may (but need not), pay towards the cost of the provision of support for the carer.

(10)  The level specified for the purposes of subsections (8) and (9) is referred to in this Part as “the financial limit”; and the regulations may in particular (in reliance on section 125(7)) specify-

(a)  different levels for different descriptions of care and support;
(b)  different levels for different descriptions of support.

(11)  The regulations must make provision for-

(a)  calculating income;
(b)  calculating capital.

(12)  The regulations may make provision-

(a)  for treating, or not treating, amounts of a specified type as income or as capital;
(b)  as to cases or circumstances in which an adult is to be treated as having, or as not having, financial resources above the financial limit.

(13)  The regulations may make provision as to cases or circumstances in which a local authority is to be treated as –

(a)  having carried out a financial assessment in an adult’s case, and
(b)  being satisfied on that basis that the adult’s financial resources exceed, or that they do not exceed, the financial limit.
The Government’s Explanatory Notes to the Bill for this Act say as follows:

“This section requires a local authority to carry out a financial assessment if they have chosen to charge for a particular service under the power in section 14. This is in order to determine the individual’s contribution towards the cost of the care and support that they require. The rules about how a financial assessment is conducted ensure that such assessments are carried out on a consistent basis.  Subsections (7) to (13) allow regulations to set rules in relation to financial assessment, including setting the maximum amount of financial resource an adult may have, above which a local authority will not contribute towards an individual’s care and support costs, and daily living costs. These provisions replace those in section 22 of the National Assistance Act 1948.

The regulations may set rules where the local authority need not carry out a full financial assessment and whether, in these circumstances, the individual needing care and support is entitled to local authority support. This would allow for less detailed financial assessments to be carried out in some situations, and could enable the local authority to meet the needs of people who do not wish to have a full financial assessment, if the authority considers this necessary.”

 

Section 18 – Duty to meet needs for care and support

(1) A local authority, having made a determination under section 13(1), must meet the adult’s needs for care and support which meet the eligibility criteria if—

(a)  the adult is ordinarily resident in the authority’s area or is present in its area but of no settled residence,
(b)  the adult’s accrued costs do not exceed the cap on care costs, and
(c)  there is no charge under section 14 for meeting the needs or, in so far as there is, condition 1, 2 or 3 is met.

(2)  Condition 1 is met if the local authority is satisfied on the basis of the financial assessment it carried out that the adult’s financial resources are at or below the financial limit.

(3)  Condition 2 is met if—

(a)  the local authority is satisfied on the basis of the financial assessment it carried out that the adult’s financial resources are above the financial
limit, but
(b)  the adult nonetheless asks the authority to meet the adult’s needs.

(4)  Condition 3 is met if—

(a)  the adult lacks capacity to arrange for the provision of care and support, but
(b)  there is no person authorised to do so under the Mental Capacity Act 2005 or otherwise in a position to do so on the adult’s behalf.

(5)  A local authority, having made a determination under section 13(1), must meet the adult’s needs for care and support which meet the eligibility criteria if—

(a)  the adult is ordinarily resident in the authority’s area or is present in its area but of no settled residence, and
(b)  the adult’s accrued costs exceed the cap on care costs.

(6)  The reference in subsection (1) to there being no charge under section 14 for meeting an adult’s needs for care and support is a reference to there being no such charge because—

(a)  the authority is prohibited by regulations under section 14 from making such a charge, or
(b)  the authority is entitled to make such a charge but decides not to do so.

(7)  The duties under subsections (1) and (5) do not apply to such of the adult’s needs as are being met by a carer.
The Government’s Explanatory Notes to the Bill for this Act say as follows:

“This section sets out the circumstances when a local authority is obliged to meet an adult’s eligible needs for care and support and is the principal individual entitlement to care and support for adults with needs for care and support (the equivalent for carers is provided for in section 20). This replaces a number of duties to provide particular care and support services to adults: sections 21(1), 21(2) and 29(1) of the National Assistance Act 1948, section 2(1) of the Chronically Sick and Disabled Persons Act 1970, and section 45(1) of the Health Services and Public Health Act 1968.

Subsections (1) and (2) set out the circumstances in which an adult is entitled to care and support to meet their needs where the adult has been assessed by the local authority and has been determined to have “eligible” needs for care and support (this would be decided using the eligibility framework set out in regulations made under section 13).  Subsection (1) sets out the preconditions that trigger the local authority’s duty to meet an adult’s eligible needs for care and support in a case where the adult’s accrued costs do not exceed the cap on care costs (see section 15). These are:  that the adult is ordinarily resident in the local authority area (or has no settled residence in any area, but is living in the local authority area at that time), (provision about ordinary residence is made in section 39); and either: a) that the local authority has either decided not to charge for a particular type of care and support, or is not able to charge. The circumstances in which the local authority does not or may not charge are set out in subsection (6); or b) if it is not such a case, one of the following three conditions is met.  Subsections (2) to (4) set out the three conditions that trigger the duty to meet eligible needs: The first condition is that the adult’s financial resources are assessed as being at or below the financial limit set in regulations under section 17. In other words, the adult does not have sufficient financial resources to be able to pay the charge which is assessed as due, although they may be required to make a contribution. The amount of resources required will depend on the type of care and support, and will be calculated following a financial assessment carried out by the local authority (under section 17).  However, the second condition provides that the adult may request that the local authority meet their needs, even if their resources are assessed as above the financial limit, so that they have to pay for their care in full. That request would trigger the duty on the local authority to meet their needs. Where the adult lacks capacity to make the request, it may be made by someone else acting on their behalf.  The third condition is that the adult lacks the mental capacity to arrange care and support, and there is no other person willing or able to arrange that care and support on their behalf. In these circumstances, the duty applies, regardless of other factors such as finances.

Subsection (5) provides that the local authority is under a duty to meet an adult’s needs for care and support which meet the eligibility criteria where the adult’s accrued costs exceed the cap on care costs (see section 15) if the adult is ordinarily resident in the local authority area (or has no settled residence in any area, but is living in the local authority area at that time).

Subsection (6) sets out the circumstances in which there may be no charge for particular types of care and support, for the purposes of subsection (1)(c). These are that: regulations prohibit the local authority from charging for the type of care and support being provided by the local authority; or the local authority decides not to charge for the care and support being provided.

Subsection (7) provides that the local authority is not under a duty to meet any of the adult’s eligible needs which are being met at that time by a carer.  When conducting the needs assessment and the eligibility determination, the local authority will assess the totality of the adult’s needs, regardless of whether a carer is currently meeting any of them.  This is sometimes referred to as the assessment being “carer-sighted”.  However, the local authority is not under a duty to meet any eligible needs which are being met by a carer, because the carer is already doing so. If a carer were to cease providing care and to stop meeting any eligible needs, this would trigger a review of the adult’s care and support plan, and may mean that the local authority is required to meet the needs.  If the carer has needs for support, they should be entitled to an assessment in their own right, under section 10, and may receive support to meet their eligible needs.”

 

Section 19 – Power to meet needs for care and support

(1)  A local authority, having carried out a needs assessment and (if required to do so) a financial assessment, may meet an adult’s needs for care and support if—

(a)  the adult is ordinarily resident in the authority’s area or is present in its area but of no settled residence, and
(b)  the authority is satisfied that it is not required to meet the adult’s needs under section 18.

(2)  A local authority, having made a determination under section 13(1), may meet an adult’s needs for care and support which meet the eligibility criteria if—

(a)  the adult is ordinarily resident in the area of another local authority,
(b)  there is no charge under section 14 for meeting the needs or, in so far as there is such a charge, condition 1, 2 or 3 in section 18 is met, and
(c)  the authority has notified the other local authority of its intention to meet the needs.

(3)  A local authority may meet an adult’s needs for care and support which appear to it to be urgent (regardless of whether the adult is ordinarily resident in its area) without having yet—

(a)  carried out a needs assessment or a financial assessment, or
(b)  made a determination under section 13(1).

(4)  A local authority may meet an adult’s needs under subsection (3) where, for example, the adult is terminally ill (within the meaning given in section 82(4) of the Welfare Reform Act 2012).

(5)  The reference in subsection (2) to there being no charge under section 14 for meeting an adult’s needs is to be construed in accordance with section 18(6).

The Government’s Explanatory Notes to the Bill for this Act say as follows:

“This section provides broad powers to enable local authorities to meet the needs of adults whose needs they are not otherwise required to meet, for instance because the adult is not ordinarily resident, or does not have needs for care and support which meet the eligibility criteria. The local authority must have carried out an assessment in
these cases to determine what needs the adult does have, if any.  In addition, subsection (3) gives a power for local authorities to meet needs in urgent cases, without having first carried out the required assessments. Sometimes, it will be necessary to put in place care and support urgently and there may not be time to undertake a full assessment. In such cases, the local authority must still carry out the assessments, but can do so in due course so as to not delay care and support being put in place.”

 

Section 20 – Duty and power to meet a carer’s needs for support

(1)  A local authority, having made a determination under section 13(1), must meet a carer’s needs for support which meet the eligibility criteria if—

(a)  the adult needing care is ordinarily resident in the local authority’s area or is present in its area but of no settled residence,
(b)  in so far as meeting the carer’s needs involves the provision of support to the carer, there is no charge under section 14 for meeting the needs or, in so far as there is, condition 1 or 2 is met, and
(c)  in so far as meeting the carer’s needs involves the provision of care and support to the adult needing care—

(i)  there is no charge under section 14 for meeting the needs and the adult needing care agrees to the needs being met in that way, or
(ii)  in so far as there is such a charge, condition 3 or 4 is met.

(2)  Condition 1 is met if the local authority is satisfied on the basis of the financial assessment it carried out that the carer’s financial resources are at or below the financial limit.

(3)  Condition 2 is met if—

(a)  the local authority is satisfied on the basis of the financial assessment it carried out that the carer’s financial resources are above the financial limit, but
(b)  the carer nonetheless asks the authority to meet the needs in question.

(4)  Condition 3 is met if—

(a)  the local authority is satisfied on the basis of the financial assessment it carried out that the financial resources of the adult needing care are at or below the financial limit, and
(b)  the adult needing care agrees to the authority meeting the needs in question by providing care and support to him or her.

(5)  Condition 4 is met if—

(a)  the local authority is satisfied on the basis of the financial assessment it carried out that the financial resources of the adult needing care are above the financial limit, but
(b)  the adult needing care nonetheless asks the authority to meet the needs in question by providing care and support to him or her.

(6)  A local authority may meet a carer’s needs for support if it is satisfied that it is not required to meet the carer’s needs under this section; but, in so far as meeting the carer’s needs involves the provision of care and support to the adult needing care, it may do so only if the adult needing care agrees to the needs being met in that way.

(7)  A local authority may meet some or all of a carer’s needs for support in a way which involves the provision of care and support to the adult needing care, even if the authority would not be required to meet the adult’s needs for care and support under section 18.

(8)  Where a local authority is required by this section to meet some or all of a carer’s needs for support but it does not prove feasible for it to do so by providing care and support to the adult needing care, it must, so far as it is feasible to do so, identify some other way in which to do so.

(9)  The reference in subsection (1)(b) to there being no charge under section 14 for meeting a carer’s needs for support under section 14 is a reference to there being no such charge because—

(a)  the authority is prohibited by regulations under section 14 from making such a charge, or
(b)  the authority is entitled to make such a charge but decides not to do so.

(10)  The reference in subsection (1)(c) to there being no charge under section 14 for meeting an adult’s needs for care and support under section 14 is to be construed in accordance with section 18(6).
The Government’s Explanatory Notes to the Bill for this Act say as follows:

“This section sets out the core duty of the local authority to meet a carer’s eligible needs for support. This duty replaces the power to provide services to carers in section 2 of the Carers and Disabled Children Act 2000, in respect of those carers who are adults and are providing care for another adult.

Subsections (1) to (5) set out the different circumstances that may trigger the local authority’s duty to meet a carer’s needs for support which meet the eligibility criteria. The common requirements are that the adult needing care is ordinarily resident in the local authority’s area (or has no settled residence, but is living in the local authority’s area at that time); and, that the carer has been assessed by the local authority and has been determined to have eligible needs for support.

The application of the remaining “trigger” conditions depend on whether or not the local authority charges for the support or care and support to be provided. The local authority has the power under section 14 to make a charge (unless prohibited by regulations made under that section from making such a charge). However, a local authority may decide (as is usually the case under the current law, in respect of carer’s needs) not to exercise that power to make a charge.  If a local authority has decided not to charge for support (and, where the care and support is to be provided in the form of care and support to the adult needing care, the adult agrees to its provision), then there are no further conditions, and the duty to meet the carer’s eligible needs for support will arise on the basis of the common requirements set out above only.  If the local authority does choose to charge for the support to be provided, then one of four additional conditions set out in the section must be met in order for the carer to be entitled to support.  These conditions are in turn linked to the question of whether meeting the carer’s needs involves the provision of support direct to the carer or whether it involves the provision of care and support direct to the adult needing care.  A carer’s needs for support may be met by direct provision of support to the carer. Alternatively, as subsection (7) acknowledges, a carer’s need for support may be met by providing care and support direct to the adult for whom they are caring, for example by providing replacement care to allow the carer to have a break from caring.

It does not matter that there may be no duty to meet that adult’s needs in their own right.  Section 14 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.  Where (i) the two common requirements as set out above are met; (ii) there is a charge for meeting the needs; and (iii) one of the relevant conditions, as set out below, is fulfilled, then the duty to meet the carer’s eligible needs for support will arise.

The first and second conditions both apply where meeting the carer’s needs involves the provision of support to the carer. The first condition is that the carer does not have sufficient financial resources to be able to pay any charge which is assessed as due. The second condition is that the carer has sufficient financial resources to pay any charge but nevertheless requests that the local authority meet their needs.  The third and fourth conditions both apply where meeting the carer’s needs involves the provision of care and support to the adult needing care. The third condition is that the adult needing care does not have sufficient financial resources to be able to pay any charge which is assessed as due, and that the adult concerned agrees to receive such support. The fourth condition is that adult needing care has sufficient financial resources to pay any charge but nevertheless requests the local authority to meet the needs by providing care and support to them.

This section also provides a broad power to enable local authorities to meet the needs of carers who are not otherwise eligible, including the provision of care and support to the person needing care, as long as that person agrees. It also acknowledges the situation where a local authority might consider the best way of meeting a carer’s needs for support is by providing care and support to the adult needing care but it is not possible to do so (for example, if that adult does not agree to such provision). This section requires the local authority, as far as it is feasible, to identify some other way of supporting the carer.”

 

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